Duty of Care in Employee Co-Governance Procedure Lies with the Employer
Court of Appeal of Amsterdam (Enterprise Section), JAR
2011/11
Recently, a dispute was presented to the Enterprise Section
about the question of whether a decision that was taken after the
Works Council failed to give advice within the term set is
manifestly unreasonable.
The Facts
The basis of this case is as follows. On 1 April 2010 the
employer asked the Works Council's advice about the outsourcing
of administrative activities to a company established in India. For
this advice the employer set a deadline of 15 May 2010. After some
weeks, on 6 May 2010, the Works Council informed the employer in
writing that the subject matter would be dealt with at the
consultative meeting of 18 May 2010, and that the Works Council
could therefore not give an advice within the term set. Without
making any further agreements in this respect or awaiting the Works
Council's advice, the director subsequently took the decision -
in conformity with the request for advice - on 19 May 2010. Next,
on 20 May 2010, the Works Council issued a negative advice.
Enterprise Section Proceedings
The employer concerned and the Works Council had
concluded a covenant, providing that if the Works Council could not
meet the term set for advice or consent, new written agreements
would have to be made. Since the employer did not follow this
covenant and took his decision without awaiting the Works
Council's advice, the Works Council applied to the Enterprise
Section and requested the decision to be declared manifestly
unreasonable.
In its judgment, the Enterprise Section considered that the
starting point is that the employer may only proceed to take a
decision after the requested advice of the Works Council has been
issued. Since in this case the employer took the decision without
awaiting the advice of the Works Council, and there were no
circumstances that would justify an exception, the Enterprise
Section ruled that the decision is manifestly unreasonable.
The Enterprise Section considered it especially important that
in this case – also in view of the covenant – it would have been
the director's responsibility to consult with the Works Council
again about the term for the advice as soon as it became clear that
the Works Council could not give its advice within the term set. In
the opinion of the Enterprise Section it would also have been the
director's responsibility before taking the decision to inquire
with the Works Council about the state of the decision-making
process in the Works Council. In this connection the Enterprise
Section has emphasized that the duty of care to monitor the
employee co-governance procedure lies primarily with the
employer.
Tips
- For both the director and the Works Council it is important
to constantly keep each other informed about the state of the
decision-making process. This way possible delays may be
prevented quickly by making new arrangements.
- The above-mentioned judgment shows once again that the duty
of care for the employee co-governance procedure lies primarily
with the employer. Therefore, as an employer you should
actively inquire about the state of affairs with the Works
Council.
- If an employer takes a decision without awaiting the advice
of the Works Council, the Works Council should immediately rely
on the suspension period and institute appeal proceedings
pursuant to Section 26 of the Dutch Works Councils Act.