When can the works council appeal to the Enterprise Division?

The works council can appeal a decision of the director, if:

  • The advice of the works council was not followed up (completely) by the director
  • The director did not consult the works council and the works council could not give advice (for instance, if the works council was not given sufficient information)
  • After the advice of the works council facts and circumstances emerged that might have led to a different advice of the works council.

In order to a lodge an appeal a lawyer is required. If the Enterprise Division considers the appeal justified, the Enterprise Division can take the following measures:

  • Order the director to withdraw the decision in whole or in part
  • Eliminate certain effects of the decision
  • Prohibit the director from performing actions to implement or have implemented (part of) the decision.

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Related questions

  • Can the works council be provided with additional powers?

    Yes, it can. In principle, the powers of the works council are described in the Works Councils Act (Wet op de Ondernemingsraden; WOR). However, it is possible to provide the works council with additional powers. These additional powers have to be laid down in a collective agreement or in regulations of a public body. The director and the works council can together agree upon additional powers in a written agreement. It is not allowed to restrict the statutory powers of the works council.

  • Does the works council have to bear the costs for involving a lawyer and conducting legal proceedings?

    Lawyers’ fees and the costs incurred for conducting legal proceedings by the Works Council versus the director may be charged to the director. However, the director has to be informed of the costs in advance. He or she can object to the level of costs. So make sure you have a good understanding about what to expect. In addition, make sure whether the Works Council is bound to an annual budget for engaging experts and/or conducting legal proceedings.

  • When is the works council entitled to information, and to what information is it entitled?

    First of all, the works council has a passive right to information. That means, the entrepreneur has to provide certain information upon his own initiative. For instance, the director has to provide the works council with an annual report.

    Besides, the director has to provide the works council with information when submitting a request for advice or consent. This includes in any event:

    • The grounds for the decision
    • The expected effects of the decision on the personnel
    • The measures the director intends to take regarding these effects.

    The works council is also allowed to request information from the director which is reasonably necessary to perform its duties. This is referred to as active right to information. The main rule here is that the works council, and not the director, determines which information is necessary. The director cannot hide behind the argument that the information is confidential because for this reason the director can impose an obligation of secrecy on the works council.

    Does the director provide insufficient information and is he not prepared to provide more information? For this reason, the works council can give a negative advice. This ensures the remedy of appeal to the Enterprise Division if the director derogates in his decision from the advice given by the works council.

  • When can the works council start legal proceedings before the subdistrict court?

    The works council can start legal proceedings, if a provision of the Works Councils Act is violated (Wet op de Ondernemingsraden; WOR), for instance if:

    • The director has not consulted the works council for advice
    • The works council wasn’t able to give advice
    • The director doesn’t to follow up, in part, on the advice of the works council
    • The director has not asked the works council’s consent
    • Facts and circumstances emerged after the advice was given, which could have led to a different advice of the works council.

    Apart from the above, the works council has a so-called independent standing. The works council can make use of this standing if it is in the interest of and desirable for the performance of its tasks. For instance, if the works council was a party in concluding an agreement and the validity of the agreement is challenged. Or if the works council intends to force a director to meet the agreements made in the context of a consultation.

  • When does the works council have to give its consent?

    The works council has to give its consent with regard to certain decisions. The right of consent relates to decisions regarding the social policy of the company that are not regulated in a collective agreement. This includes decisions for the adoption, modification or withdrawal of regulations on:

    • Working hours and holiday
    • Remuneration or job evaluation system
    • Working conditions, absence through illness and re-integration policy
    • Privacy and use of social media
    • Pension
    • Employment, dismissal and promotion policy
    • Personnel training or assessment
    • Company welfare services, work consultations, handling of complaints
    • Provisions geared at or suitable for control of attendance, conduct or performance of the employees (for instance, camera surveillance)
    • Regulation for whistleblowers

    Subjects that are already governed by a collective agreement or of individual nature do not fall under the right of consent.

    The works council has to convene at least once before giving consent. After deliberation the works council will inform the director in writing of its motivated decision as soon as possible.

    If the works council does not consent, the director can request the court for substituting consent.

  • What can the works council do if the directors have not asked for advice?

    In the event the director takes a decision subject to consultation without the advice of the works council, the works council can appeal to the Enterprise Court. For this, representation by a lawyer is required. The Enterprise Court will then assess whether the decision is ‘manifestly unreasonable’. This will usually be the case if the works council has not been consulted. The Enterprise Chamber may then order the director to withdraw the decision in whole or in part and eliminate the effects of the decision. In addition, the Enterprise Court can prohibit the director from implementing the decision.

    What if a director is of the opinion that a decision does not require consultation but the works council thinks differently? If the decision has not been taken yet, the works council can commence proceedings before the subdistrict court to enforce consultation. The subdistrict court will decide whether or not the decision requires consultation. If the decision has already been taken, the works council can start proceedings before the Enterprise Court.