Good governance: The right of consent of the Works Council

Publication date: 28 April 2016
For a number of important decisions the management of a company needs the consent of the Works Council. What happens if the works council does not grant consent?

corporate governance

Right of consent

If a company has 50 or more employees, the entrepreneur (represented by the management) is allowed to make certain decisions only with the consent of the Works Council. In addition to the right to be consulted, the right of consent is the second important right of the Works Council.

The right of consent refers to intended decisions regarding the social policy of a company which are not regulated by a collective agreement. This includes decisions relating to the establishment, modification and withdrawal of arrangements regarding:

  • Working hours and holidays
  • Remuneration or job evaluation systems
  • Working conditions, sick leave and reintegration policy
  • Privacy and use of social media
  • Pension agreement

Matters already regulated by a collective agreement or of an individual nature do not fall under the right of consent.

Which procedure does the entrepreneur have to follow in the event of a decision that is subject to the right of consent?

  1. The entrepreneur must submit to the Works Council in writing the intention to take a decision that requires consent (including his reasons and the expected consequences for the staff).
  2. The Works Council must be given the opportunity to study the request for consent and to discuss it (internally).
  3. The entrepreneur and the Works Council must (at least) once discuss the matter jointly once.
  4. The Works Council will notify the entrepreneur whether or not it agrees with the request for assent.
  5. Then, the entrepreneur will notify the Works Council as soon as possible in writing and substantiated of his decision.

Consequences of refusal of consent by the Works Council

A decision made without the required consent is void (not valid), if the works council invokes nullity of this decision in writing up to one month after:

  • The Works Council was notified of the decision by the entrepreneur.
  • The Works Council noticed that the entrepreneur has applied or implemented the decision.

At the request of the Works Council, the entrepreneur may be obliged by the subdistrict court not to apply or implement this void decision.

What if the Works council continues to refuse to grant consent?

The entrepreneur may request the subdistrict court’s alternative consent. The subdistrict court may only grant this consent after having considered the arguments brought forward by the entrepreneur and the objections of the Works Council, if

  • The decision of the Works Council is unreasonable.
  • There are serious reasons for the company that require the intended decision.

Action

  • Check at an early stage whether for an intended decision within your company the consent of the Works Council is required.
  • If so, submit the decision to the Works Council and check whether your request for assent meets all procedural requirements.
  • Contact a lawyer if you are not familiar with the requirements of the assent procedure or if the Works Council does not grant consent.

More information

Do you have any questions about the right to be consulted and the other powers of the Works Council, or any other questions regarding corporate law and employee participation, please contact us:

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