Employee Participation Update

24 November 2020 – Barbara Spliet

These are busy times for companies and employee participation bodies; many changes in employment conditions and reorganizations are taking place. However, these are not the only developments in the field of employee participation law, three of which we will share with you below.

No postponement of elections of Works Council due to corona

The court recently ruled that the corona crisis does not justify a postponement of the elections for a new Works Council. Deadlines for elections must be complied with unless there are very pressing reasons to deviate from those deadlines.

Proposed changes to the Dutch Works Councils Act

Minister Koolmees announced that he intends to shorten the statutory terms for active and passive voting rights from 6 and 12 months respectively to 3 months, thus lowering the threshold for taking a seat in the Works Council. The minister also announced that a study will be made to assess the possibilities of shortening the terms for voting rights of temporary workers.

Furthermore, it will be laid down that permanent committees do not need to have a majority of Works Council members as currently is compulsory. With the provison that if a permanent committee has a minority of Works Council members, the advisory and approval rights will still be vested in the Works Council.

The minister is also considering using a ‘Works Council ambassador’ at branch level, so employers without Works Council can be informed about the benefits and plus-value of a Works Council.

Finally, it will be studied whether it is possible to digitally handle and organize matters which are presently required to be in writing or physically present.

Phrasing is key

Phrasing an advice or response to a request for consent by the Works Council must be precise, as shown (once more) by a recent court decision.

A Works Council agreed in part with the decision to join another pension fund. However, the Works Council did not agree to several items of the submitted decision. As the said items could not be detached from the decision to join the pension fund or were not subject to consent individually, the employer was nevertheless allowed to execute the decision in full.

This court decision makes it clear that phrasing is key; the Works Council would have been better off with a conditional consent instead of granting approval to one part of the decision and not to another part. In general, the phrasing of the advice or response to the intended decision is decisive, because this will be the basis for possible court proceedings. A Works Council is not allowed to present other/new objections or to decide to rephrase it differently.

Barbara Spliet