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A Works Council (WC) has a right to consent with regard to proposed decisions to adopt, amend or repeal a regulation pursuant to Section 27 of the WOR. But what if the Works Council refuses to give its consent to the implementation of the resolution? Is that reasonable, or do the interests of the employer outweigh the interests? And what can the entrepreneur do? In this article we answer these questions by discussing the right of the Works Council to consent and the possibilities open to the entrepreneur in case of refusal.

Is the decision subject to assent?

The first question the entrepreneur must ask himself is whether the decision requires consent at all. It must be a regulation. That regulation must relate to a sufficiently concrete subject with a permanent character that applies to a group of persons in the company. There is no right of consent for primary employment conditions; this is reserved for the trade unions. Nor is there a right to consent with respect to subjects that are exhaustively regulated in a collective bargaining agreement.

Extension of Works Council powers

Another point of attention is that the advisory right of the Works Council may have been extended in a collective agreement or a company agreement. If the consent of the Works Council has been requested several times in writing, unambiguously and without reservation, and the Works Council has responded to this request in writing, a corporate agreement may have come into being.

Next steps in case of refusal of WC consent

If the decision requires the employee’s consent, the employer must start the consent procedure. After the request for consent and the consultation meeting(s), the Works Council must respond to the request. If the Works Council does not give its consent, the entrepreneur is faced with a stalemate. An entrepreneur has three options: (1) renounce the decision, (2) amend the decision or (3) ask the subdistrict court for substitute consent?

When is substitute consent granted? 

The latter, asking for substitute permission after being refused by the WC, is what the company QBuzz did. QBuzz wanted to adjust the roster due to the declining number of passengers because of the corona pandemic. In that roster, more weekend and late shifts should be driven. QBuzz asked the Works Council for its consent. The Works Council refused because the roster would mean that drivers who work broken shifts and therefore do not have to drive at the weekend would still have to drive weekend shifts. QBuzz then went to the subdistrict court in order to distribute the extra shifts among all the drivers.

In this ruling, the Subdistrict Court further explained the method of review. The Subdistrict Court considered that the interests of the employer and employee must be weighed against each other. This does not concern the mere determination of a weighty interest on the part of the employer. 

Which interests carry the most weight? 

The Subdistrict Court ruled in the present case that the Works Council had not acted unreasonably by not giving its consent. However, when weighing up the interests of both parties, the Subdistrict Court concluded that the Works Council should have granted its consent. The Subdistrict Court did not consider it plausible that the burden of the drivers with broken shifts became heavier than that of their colleagues with a regular schedule. After all, the drivers with broken shifts can go home in between. The conclusion is therefore that QBuzz has a legitimate interest and is allowed to implement the new duty roster, which means that the extra shifts can be distributed among all drivers. This outweighs the interest of the Works Council that wants to stand up for drivers with past benefits.

Conclusion: what can an entrepreneur do?

The refusal of the works council may be unreasonable or the interests of the entrepreneur may outweigh its own. If the works council refuses to give its consent to the implementation of the decision, the entrepreneur may go to the subdistrict court to ask for substitute consent. The subdistrict court will then weigh the interests against each other.

Looking for more information about the right to consent? Please feel free to contact Peter Verheijden or Lisa Kloot of LVH Advocaten. They specialize in labor law and will be happy to assist you.