Request for Substitute Consent Following Works Council's Refusal to Consent to New Roster
Subdistrict Court of Maastricht, 24 November 2010, JAR
2011/33
The Facts
Under the influence of European rules and case law (the
Jaeger ruling, ECJ Luxembourg, 9 September 2003) and an
amendment to the Working Hours Decree in 2007 arising therefrom,
the maximum weekly working hours for fire brigades staff have been
reduced from 54 hours to 48 hours. Since then, the consequences of
this change for the duty roster and remuneration of the fire
brigade staff have been a topic of discussion between employers and
trade unions, both at centralized and decentralized levels.
After the centralized and decentralized consultations with the
trade unions had reached a deadlock, the Fire Brigade of
Zuid-Limburg ("the Employer") took the position that it
had realized that it was in fact the Works Council of the Fire
Brigade of Zuid-Limburg ("the BZL Works Council"), rather
than the trade unions, which had to decide on the change to the
duty roster. The Employer therefore requested the BZL Works Council
to agree to the projected decision to change the duty roster. The
BZL Works Council took the position that the remuneration could not
be considered separately from the actual duties filling the roster,
and that agreement should still be reached with the trade unions
about this remuneration. Furthermore, the BZL Works Council took
the position that Section 27 (3) of the WOR gives precedence to the
consultations with the trade unions. The BZL Works Council
refrained from giving its consent.
The Employer then presented the matter to the Sectoral Committee
for the Government (the "SC"), asking it to act as a
mediator. The SC advised the BZL Works Council to take a decision
on the substance of the request for consent. The BZL Works Council
did not follow this advice, maintaining its point of view that
there was (still) no reason to do so. A renewed request of the
Employer with an identical proposal for the duty roster resulted in
the BZL Works Council refraining again, on similar grounds, from
consenting to the proposal. The Employer then applied to the
Subdistrict Court, requesting it to give substitute consent. Two
trade unions joined these proceedings as interested
parties.
Judgment of the Subdistrict Court
The Subdistrict Court held that the trade unions had
sufficiently substantiated their interest in the proceedings, so
that they had a full cause of action as interested parties within
the meaning of Section 282 of the Dutch Code of Civil Procedure.
According to the Subdistrict Court, the separation between the
Works Council and the trade union leads to the almost automatic
interest of the trade unions, in an outcome of proceedings which,
using a request for consent, are intended to obstruct the right of
the trade union to freely negotiate. The Subdistrict Court held
that it cannot be denied that there is more to this case than just
the determination of a duty roster. As the hours in the duty roster
are linked to various wage values, the Subdistrict Court deemed
that elementary pay and hours conditions were at issue here. This
topic has not yet been regulated exhaustively in the nationwide
consultations on employment conditions concerning work and rest
periods of the fire brigades. Nevertheless, the Subdistrict Court
held that this was a matter that had already been “regulated as to
its contents” within the meaning of Section 27 (3) of the WOR. As
long as the locally organized consultations with the trade unions
have not yet produced a decision, the Works Council can and could
deny itself the role of consulting party on valid grounds.
Consequently, the Subdistrict Court denied the Employer the
substitute consent it had requested.
Tips for
Practice
This ruling is interesting for practice for the following three
reasons:
Division of Roles between Works Council and Trade
Union
Section 27 (3) of the WOR provides that no consent is required
insofar as the relevant matter has already been regulated for the
undertaking as to its contents in a collective labor agreement or
in a regulation of the employment terms adopted by a regulatory
authority. In this case, it was clear that the adaptation of the
maximum working hours had been a topic of discussion for years
already between trade unions and employers. It was also clear that
the Employer had only requested the consent of the Works Council
because the talks with the trade unions had reached a deadlock.
Given these circumstances, it is clear that the Works Council has
no right to consent.
The Role of the Works Council in
Conditions of Pay and Hours
The Subdistrict Court held that in this case, a change to the
duty roster is part of the pay and hours conditions, and for that
reason alone the Works Council does not have the right to consent.
But when is an employment condition a pay and hours condition? It
could be argued of any decision that it contains elements of pay
and hours. According to the Dutch Supreme Court, the purpose of the
arrangement should be looked at (Supreme Court, 20 December 2002,
«JAR» 2003/18). Besides, an important role is reserved for the
circumstances of the individual case in the determination of
whether or not the right to consent applies.
The Trade
Unions as Interested Parties
On grounds of Section 282 of the Rv, any interested party may
submit a statement of defense. The Supreme Court has ruled that
whether or not a party is an interested party will partly depend on
to what extent the individual interest of such party may so much be
affected by the outcome of the proceedings concerned that this
party should be allowed to stand up in defense of that interest; or
it will depend on to what extent this party is or has been so
closely involved with the object of the proceedings in any other
way as gives rise to an interest in joining the proceedings
(Supreme Court, 6 June 2003, NJ 2003, 486). The Subdistrict Court
held that in these particular proceedings, the trade unions were
allowed to join the proceedings between the Works Council and the
Employer as interested parties.