As a works council, you have an important part in participating in the decision making that can have major consequences for employees. As complex legal issues can be involved, it will be good to bring in specialist assistance. Our lawyers can provide you with this kind of assistance.
Do you, as a works council, need legal advice?
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Our clients often ask the following questions. Do you have any other questions or would you like to submit a dispute to us? Call us at +31 20 301 55 55 without obligation or send us an e-mail.
The works council has to be consulted with regard to certain decisions. Because of this, the works council can actively review or try to influence the policy of the director, and represent the interests of the employees. The right to be consulted applies to decisions on:
The advice has to be asked in time and the entrepreneur must give sufficient information so that the advice can actually have an impact on the decision that is to be taken. The works council will then be granted a reasonable period of time by the director to provide the advice. The works council has to convene at least once before advice can be given.
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.
When the director takes a decision that is not (completely) in line with the advice from the works council, the director has to notify the works council as quickly as possible in writing. In addition, the director has to explain why the advice was derogated from. The director should comment on the specific objections raised in the advice of the works council. Has the director derogated from the advice for reasons unknown to the works council? Then the works council will have to be consulted again on the implementation of the decision. Meanwhile, the director has to wait for a month before implementing the decision.
What if the director does not give an explanation? Or is the decision already being implemented? In that case, the works council can appeal to the Enterprise Division of the Amsterdam Court of Appeal. For this, representation by a lawyer is required. The Enterprise Division of the Amsterdam Court of Appeal evaluates whether the decision is ‘manifestly unreasonable’. If the Enterprise Division of the Amsterdam Court of Appeal considers that this applies, it can prohibit the director from implementing the decision. Also, the Enterprise Division can order the director to withdraw the decision in whole or in part and to eliminate the effects of the decision. Besides, the works council can request provisional relief upon submission of the petition. In that case, the Enterprise Division of the Amsterdam Court of Appeal will order one or more of the above measures for the duration of the proceedings. This allows the works council to intervene quickly.
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:
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.
When the director takes a decision without the consent of the works council, the works council can annul, in writing, the decision. This means, the decision is void. The works council has to do so within a period of one month. This period commences when the director notifies the works council that a decision has been taken. What if the director hasn’t notified the works council thereof? In that case, the term shall commence when the works council realizes that the director has implemented the decision.
Then, the works council can commence legal proceedings before the subdistrict court to prohibit the director from (further) implementing the decision.
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:
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.
The works council can appeal a decision of the director, if:
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:
The works council doesn’t need to just react on advice or consent requests by the director but it can also take initiatives. The works council can point out subjects for discussion to the director both during and outside consultation meetings. The director will then be required to consult with the works council about the subjects.
If the works council has addressed the subject outside the consultation meeting, the director will have to notify the works council as quickly as possible about what the director intends to do in response to the initiative. By means of this still rarely-exercised right the works council can play an active role.
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 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.
To be able to function well as a works council, certain facilities are required. The members of the works council and of commissions are entitled to the following:
Please note: Costs for training/courses and consultation of specialists may be related to an annual budget.
The director and the works council may expand these facilities in mutual consultation. To clarify for both the works council and the director what facilities the works council is entitled to, it is advisable to record agreements.
In addition to these facilities and provisions, members of a works council are entitled to employment protection.
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.
The works council has an important role in reorganisations. During reorganisations, the works council has the right to give advice regarding one or more parts of the reorganisation. For instance, the works council has to be asked for advice for drawing up a social plan in case of mass redundancy, even if the employer is conducting negotiations with the trade unions on this.
In some cases the works council has to be asked for consent, for instance with regard to adopting, modifying or withdrawing, among others, a remuneration or job evaluation system. This regards changes in policy and not specific measures however.
In order to perform your role as a works council properly, it is vital to get involved in a reorganisation as early as possible. Make sure to request information in good time and plan meetings with the director, if he or she doesn’t involve you in the reorganisation plans.
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.
No, the works council doesn’t need the approval of co-workers in order to give advice or consent. However, in some cases the works council is required to inform the colleagues. For instance, the works council has to inform the colleagues of the agenda for the meetings of the works council. In addition, the minutes of these meetings and the annual report of the works council have to be disclosed.
Naturally, it is advisable to involve the colleagues as the works council represents their interests. The director has to enable the works council to consult their co-workers. Keep in mind, that the works council has a duty of confidentiality regarding affairs and business secrets. Besides, the director might have imposed an obligation for secrecy on the works council regarding certain affairs. Therefore, not all information can be forwarded to the colleagues.
When tensions run high within a company, potentially putting the company at risk, this may be a reason to go to the Enterprise Chamber to start inquiry proceedings. Who can exercise the right to file an inquiry request?
Within a company, disputes regularly arise between shareholders and/or directors. This can create situations that endanger the company. To resolve such problems, inquiry proceedings were created in the Netherlands. What do these proceedings entail?
How is your works council performing this year? As a works council, do you have many requests for advice and consent? Do the legally required consultation meetings with the company take place? Use our brief checklist to assess your cooperation with the company.