Application for Substitute Consent Because Of Refusal of Consent of the Works Council
Subdistrict Court of Rotterdam, 16 May 2011 (JAR
2011/251)
The Facts
In this case the Municipality of Rotterdam made use of a
customer tracking system to get insight into customer flows. With
the consent of the Works Council, this tracking system was also
used to register the individual work load of desk clerks. It was
agreed that this registration would be evaluated at two fixed
times. Even before the first evaluation the employer asked the
Works Council to consent to the use of the tool ‘operational
control’, which tool shows the work in progress and may be used
during the assessments of the employees. The Works Council did not
give its consent for this because it first wanted to await the
evaluation of the existing customer tracking system. The
Municipality of Rotterdam wished to go ahead with the introduction
and – after advice of the joint sectoral committees – asked the
Subdistrict Court to grant a substitute consent.
The Subdistrict Court
The Subdistrict Court has considered that the employer
has made it sufficiently plausible that he has an interest in
putting the tool into operation. On the other hand, there are the
interests of the staff to be considered. With the introduction of
the customer tracking system a start was made to track the
individual production of employees who are working behind the desk
in the city shops. Despite the fact that the tool was going to be
applied in another department, the putting into operation of the
tool ‘operational control’ was indeed an extension of a system to
monitor the production of the individual employees and to take this
into account in their assessment. The evaluation of such a new
method of operation is crucial and therefore the parties have made
arrangements in this respect. In the light of these circumstances
it is not incomprehensible that the Works Council (for the time
being) refusing its consent to the putting into operation of the
tool. It is a reasonable argument that the Works Council first
wants to have a clear picture of what the actual consequences are
for the individual employee (despite the warranties provided by the
employer). The Subdistrict Court has therefore rejected the request
of the employer, so that the tool cannot be
introduced.
Tips
- The introduction – as well as the extension – of systems
that are aimed at the observation of presence, behavior or
performances of employees are subject to consent.
- If a Works Council does not give its consent for a
projected decision and the employer still wishes to stick to
the decision, the joint sectoral committees must be asked for
advice and mediation. The joint sectoral committees will
jointly try to find a solution.
- If this fails, the employer can ask the Subdistrict Court
to give its substitute consent. The Subdistrict Court will
grant this consent if the refusal to consent of the Works
Council is unreasonable or if compelling circumstances make the
taking of the decision necessary.
- In his application to the Subdistrict Court the employer
will have to substantiate the arguments why the system must be
introduced – or changed – and must particularly also discuss
the consequences for the staff. When a system is changed, an
evaluation/analysis of the functioning until that moment may be
of interest within the framework of the argumentation.