Thinking along and participating in discussions: the works council’s right of initiative

The decision making within a company can be influenced by the works council in different ways. The best known route is by means of the works council’s right to be consulted and/or right of consent. But how can the works council influence the decision making by means of its right of initiative?

Right to be consulted and right of consent

In order to be able to exercise the right to be consulted and the right of consent, the works council must receive a request to this end from the entrepreneur. However, there are company matters on which the works council has no right to be consulted or right of consent. A way to still influence the decision making is by means of the right of initiative (Article 23 of the Works Councils Act, hereinafter: “WCA”).

Right of initiative (Article 23 WCA)

The works council’s right of initiative is a right that is often forgotten. The right of initiative refers to all matters concerning the company and its employees. Subjects on which the works council has no right to be consulted or right of consent, may also fall under the right of initiative. For example, an initiative proposal may cover social policy, employment and working conditions and environmental measures or anti-discrimination policy.

By means of the right of initiative, the works council can at an early stage upon its own initiative participate in discussions on decisions to be taken, express its views or even come up with its own proposals. In doing so, it becomes possible to participate in discussions on subjects that are important to the works council. Initiative proposals can be made both inside and outside a consultation meeting:

• In a consultation meeting (held at least once a year) proposals can be made orally, followed by consultations with the entrepreneur where the entrepreneur has to adopt a position;
• Outside the consultation meeting a proposal must be submitted to the entrepreneur in writing including an explanation. The proposal must at least be discussed once in a consultation meeting. A consultation meeting has to take place within two weeks after it has been requested by one of the parties. After the discussion, the entrepreneur has to inform the works council as soon as possible in writing and substantiate whether and to what extent he will take a decision in accordance with the proposal. This procedure for initiative proposals outside meetings is laid down in the WCA and is therefore safeguarded.

And then what?

If the entrepreneur does not take serious account of an initiative proposal of the works council, the works council can turn to the subdistrict court (Article 36 Section 2 of the WCA). The subdistrict court may then order the entrepreneur to do so. If the entrepreneur does not take a decision in accordance with the initiative proposal, no appeal is possible (within the meaning of Article 26 of the WCA).

Conclusion

As the entrepreneur is informed of the views of the works council, he can take them into account during the decision making process. In this way, the right of initiative can contribute to a greater influence on the decision making by the works council. The right of initiative can also contribute to constructive collaboration between the works council and the entrepreneur, because of the fact that consultations take place and views are expressed. In short, although the right of initiative is often forgotten, it is a useful instrument which the works council should use (more frequently).

Works council lawyers

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