A "Significant" Decision: On the Role of the Works Council in the Netherlands
Within a company, the role of the Works Council (WC) is of great importance. Sometimes, the relationship between the OR and the company's management is strained, as was the case in a recent matter adjudicated by the Enterprise Chamber of the Amsterdam Court of Appeal. The trigger for the proceedings before the Enterprise Chamber was the disagreement over whether a decision was significant within the meaning of Article 25 of the Works Councils Act (WOR) and, therefore, should have been submitted to the WC for advice.
Facts
NLW Groep is a social employment company that provides work for people with disabilities. There have been several conflicts with the WC in recent years, leading to the appointment of a delegated director because the WC had expressed a breach of confidence in relation to the actual director (CEO). The proceedings before the Enterprise Chamber specifically concerned the content of a presentation titled 'Developments and Vision NLW Productie Beschut', given by a production manager on August 25, 2023, to several executives within the organization. The presentation outlined plans with headings such as "Optimization of logistics and layout", "Full redistribution of work packages under Robert and Peter", and "Complete restructuring: logistics and types of work rearranged".
The WC had requested clarification on the precise plans of the management, but according to the WC the responses received were not sufficiently clear. NLW Groep maintained that the changes were merely process improvements and not decisions involving significant personnel changes. Eventually, the WC turned to the Enterprise Chamber, arguing that NLW Groep had not reasonably arrived at the decisions given the fact that the WC was not asked for their advice on the decision and requested the decision to be reversed, along with any implementation in the organization, so that the WC would still get the opportunity to provide advice om the matter.
Enterprise Chamber's Decision
The Enterprise Chamber concluded that the WC had not sufficiently demonstrated that a decision requiring advice had been made or was planned. After all, no employees had been transferred, and the tasks of a particular department were not altered but merely returned to their original structure, as determined by the Enterprise Chamber. The ruling indicates that it is up to theWC to evidence in court that a (significant) decision, as defined in Article 25 of the WOR, has been made. Indications thereof include whether jobs are disappearing, whether reporting lines are changing, and/or whether job functions are (substantially) altered.
What to learn from this case
In practice, it is often challenging to draw a clear line regarding whether a decision is significant enough to be submitted for advice to the WC. Typically, this can be resolved through constructive dialogue between management and the WC. However, apparently, this was no longer possible in the relationship between the WC and the company in this case; evidently, too much had happened earlier to reach agreements through constructive dialogue.
For further information on processes where the WC is (or is not) required by law to be involved, please do not hesitate to contact us at info@vanbladeladvocaten.nl.
