Chapter IV A Special powers of the Works Council
Article 25
- The entrepreneur shall give the Works Council an opportunity to render advice on any decision he proposes to make with regard to:
- Transfer of control of the enterprise or any part thereof;
- The establishment, take-over or relinquishment of control of another enterprise, or entering into, making a major modification to or severing a continuing collaboration with another enterprise, including the entering into, effecting of major changes to or severing of an important financial holding on account of or for the benefit of such an enterprise;
- Termination of operations of the enterprise or a significant part thereof;
- Any significant reduction, expansion or other change in the enterprise’s activities;
- Major changes to the organisation or to the distribution of powers within the enterprise;
- Any change in the location of the enterprise’s operations;
- Recruitment or borrowing of labour on a group basis;
- Making major investments on behalf of the enterprise;
- Taking out major loans for the enterprise;
- Granting substantial credit to or giving security for substantial debts of another entrepreneur, unless this is normal practice and part of the activities of the enterprise;
- The introduction or alteration of an important technological provision;
- Taking an important measure regarding the management of the natural environment by the enterprise, including the taking or changing of policy-related, organisational or administrative measures relating to the natural environment;
- Adopting a provision relating to the bearing of financial risks as mentioned in Article 75, paragraph (1) of the Disablement Benefits Act [Wet op de arbeidsongeschiktheidsverzekering];
- Commissioning an expert from outside the enterprise to advise on any of the matters referred to above and formulating his terms of reference.
Provisions (b) and (n), insofar as the latter relates to a matter mentioned in (b), shall not apply if the other enterprise is established or is being established abroad and the proposed decision cannot reasonably be expected to lead to a decision as mentioned in (c) to (f) concerning an enterprise being carried on by the entrepreneur in the Netherlands.
- The entrepreneur shall submit the proposed decision in writing to the Works Council for its advice. This advice shall be requested at a time when it can still significantly affect the decision to be taken.
- When its advice is being sought, the Works Council shall be furnished with a summary of the grounds for the decision, its expected consequences for persons working in the enterprise and the measures proposed for dealing with such consequences.
- The Works Council shall not render advice on a proposed decision as mentioned in paragraph (1) until the matter in question has been considered at least once in a consultation meeting. Article 24, paragraph (2), shall apply mutatis mutandis to the discussion of the proposed decision at the consultation meeting.
- If a decision mentioned in paragraph (1) is taken, advice having first been given by the Works Council, the entrepreneur shall, as soon as possible, send the Works Council written notification of the decision. If the Works Council’s advice has not been followed or only partially so, the Works Council shall also be informed of the reasons for this. To the extent that the Works Council has not already given its advice on the implementation of the decision, its advice shall also be sought on such implementation.
- Unless the entrepreneur’s decision accords with the advice of the Works Council, the entrepreneur shall postpone implementation of the decision until one month after the day upon which the Works Council was notified of the decision. This obligation shall lapse if the Works Council gives notice to that effect.
Article 26
- The Works Council may lodge an appeal with the Enterprise Section [Ondernemingskamer] of the Amsterdam Court of Appeal [Gerechtshof] against a decision by an entrepreneur as mentioned in Article 25, paragraph (5), either if the decision does not accord with the advice of the Works Council or if facts or circumstances have become known which, if they had been known to the Works Council at the time of rendering its advice, could have been grounds for not rendering the advice as rendered.
- Appeals shall be lodged by petition within a month of the Works Council being informed of the decision mentioned in paragraph (1).
- The entrepreneur shall be informed of any appeal that is lodged.
- Appeals may be lodged only on the grounds that the entrepreneur, in weighing the interests involved, could not in all fairness have arrived at the said decision.
- The Enterprise Section shall deal with the petition with the utmost urgency. Before giving its ruling, it may, in its official capacity, take evidence from experts as well as from persons working in the enterprise. If the Enterprise Section grants the appeal, it shall declare that in weighing the interests involved, the entrepreneur could not in all fairness have arrived at the said decision. It may, if the Works Council has so requested, also take one or more of the following measures:
- Order the entrepreneur to rescind his decision in whole or in part, and to reverse specified consequences of the decision;
- Prohibit the entrepreneur from performing certain actions or causing them to be performed in implementation of the decision or parts thereof.
No measures taken by the Enterprise Section may infringe any rights acquired by third parties.
- Any failure to comply with or any violation of a prohibition as mentioned in paragraph (5) is forbidden.
- If both parties so request, or if the entrepreneur undertakes to rescind or modify the decision against which an appeal has been lodged or to reverse certain consequences of the decision, the Enterprise Section may for a period of its own specification defer judgement on a petition for measures to be taken.
- Following the submission of a petition, the Enterprise Section may take provisional measures, if necessary without delay. Paragraph (5), sentences four and five, and paragraph (6) shall apply mutatis mutandis.
- Appeals against a decree by the Enterprise Section may be lodged only with the Supreme Court [Hoge Raad].
Article 27
- The endorsement of the Works Council shall be required for every proposed decision on the part of the entrepreneur to lay down, amend or withdraw:
- Any regulation relating to a pension insurance scheme, a profit-sharing scheme or a savings scheme;
- Regulations relating to working hours or holidays;
- Pay or job-grading systems;
- Regulations relating to working conditions, sick leave or reintegration;
- Regulations relating to policy on appointments, dismissals or promotion;
- Regulations relating to staff training;
- Regulations relating to staff appraisals;
- Regulations relating to industrial social work;
- Regulations relating to job coordination meetings;
- Regulations relating to complaints procedures;
- Regulations relating to the handling and protection of personal information of persons working in the enterprise;
- Regulations relating to measures aimed at or suitable for monitoring or checking the attendance, behaviour or performance of persons working in the enterprise; all the above matters being insofar as they relate to all the persons working in the enterprise or any group thereof.
- The entrepreneur shall submit his proposed decision in writing to the Works Council. In addition, he shall present a summary of his reasons for the decision, as well as the consequences that the decision is expected to have for persons working in the enterprise. The Works Council shall not take a definitive standpoint on the matter in question until it has been discussed at least once in a consultation meeting. After the consultation meeting, the Works Council shall as soon as possible notify the entrepreneur in writing of its standpoint and the grounds on which that standpoint is based. After the Works Council has made its standpoint known, the entrepreneur shall notify the Works Council in writing of the decision he has taken and the date upon which the said decision will take effect.
- The obligation mentioned in paragraph (1) shall not apply if and insofar as the matter in question has already been regulated for the enterprise in a collective labour agreement or in an arrangement relating to terms of employment laid down by a body under public law.
- If the Works Council declines to endorse the entrepreneur’s proposed decision, the entrepreneur may ask the subdistrict court judge to rule on the matter. The subdistrict court judge shall only grant permission for the decision to be implemented if the Works Council’s refusal to endorse the decision is unreasonable or if the entrepreneur’s proposed decision is required for important organisational, economic or social reasons relating to the enterprise.
- Any decision as mentioned in paragraph (1) taken without the endorsement of the Works Council or the permission of the subdistrict court judge shall be invalid if the Works Council submits a written appeal to the entrepreneur against the decision on the grounds of invalidity within one month of either the entrepreneur having notified the Works Council of the decision in accordance with the last sentence of paragraph (2) or, in the absence of such notification, of the Works Council having discovered that the entrepreneur has implemented or applied the decision.
- The Works Council may request the subdistrict court judge to order the entrepreneur to refrain from any actions which would involve implementing or applying an invalid decision as mentioned in paragraph (5). The entrepreneur may request the subdistrict court judge to declare that the Works Council’s appeal against the decision on the grounds of invalidity, as mentioned in paragraph (5), is unfounded.
Article 28
- The Works Council shall do all within its power to ensure due observation of any regulations applying to the enterprise regarding terms of employment and issues of working conditions and working and resting hours of persons working in the enterprise.
- The Works Council shall also do all within its power to promote the consultative coordination of work activities and the transfer of responsibilities within the enterprise in order that the persons working in the enterprise may be as involved as possible in regulating work in the part of the enterprise in which they work.
- The Works Council shall guard against discrimination in general within the enterprise, and shall in particular promote the equal treatment of men and women and the employment of disabled persons and minorities in the enterprise.
- The Works Council shall do all in its power to promote environmental care on the part of the enterprise, including the taking or changing of policy-related, organisational or administrative measures relating to the natural environment.
Article 29
The Works Council may appoint from its number or elsewhere a number (to be determined by the entrepreneur, but at least half) of the board members of institutions set up by the entrepreneur for the benefit of the persons working in the enterprise, except insofar as by or pursuant to law the management of any such institution is regulated otherwise.
Article 30
- The entrepreneur shall invite the Works Council to render advice on any proposed decision on the part of the entrepreneur to appoint or dismiss a director of the enterprise.
- This advice shall be invited at a time when it can still significantly affect the decision to be taken.
- The entrepreneur shall inform the Works Council of the reasons for his decision and in the event of an appointment shall also provide information on the basis of which the Works Council can form an opinion of the individual in question in relation to his or her future position in the enterprise. Article 25, paragraph (4) and Article 25, paragraph (5), sentences 1 and 2, shall apply mutatis mutandis.
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