17 June 2021 – Barbara Spliet

Recently, a number of judgements have been published that may be of interest to those involved in employee participation. It concerns the following:

The employer decides to suspend the payment of travel expenses to the employees. The suspension applies to the period that the employees mainly work from home due to Covid-19. According to the court, this decision does not require the works council’s consent, as this is not a decision conform article 27 of the Dutch Works Council’s Act.

2. New facts after advice on reorganisation, but appeal works council denied

The works council has rendered a positive advice on a reorganisation. Shortly afterwards, the company decided that no one-off salary increases would be granted. The Works Council appeals to the Enterprise Chamber, arguing that these are new facts and circumstances for the Works Council, such that if they had been known during the advisory procedure, they would have been grounds for not issuing a positive advice.

The Enterprise Chamber does not go along with this argument and states that not granting a salary increase should be seen as a new/other decision, taken after the earlier decision to reorganise. These are genuine new facts that were not yet known to the entrepreneur during the earlier advisory procedure. The Works Council was therefore declared inadmissible. It is possible that the Works Council would have a separate right of consent – not related to the earlier advisory proceedings – however this was not discussed in the court decision.

3. Exclude trade unions from consultations on employment conditions: consultation with works council

TUI always negotiates the employment conditions with the works council. A trade union wants to be admitted to these consultations, however this was denied by the court. The court arrived at this decision as no trade union has ever been involved in any consultations, let alone that consultations or negotiations included a collective labour agreement. The court did test, among others, whether the trade union represented a large number of the employees. However, this has not been sufficiently demonstrated by the trade union. Apart from this, TUI also had a legitimate interest in maintaining the current employee participation structure with the works council.

Barbara Spliet