Respecting co-determination rights

4 December 2024

Respecting Works Council’s Participation Rights

By Koen Vermeulen

Works councils do not often litigate against their own management. Generally, the works council (WC) and the manager or entrepreneur prefer to resolve disputes through constructive dialogue.

This approach is often preferable. However, if dialogue fails, the WC has several legal avenues available. Using recent court rulings regarding the strained relationship between the works council of Rijkswaterstaat and its management, I will illustrate this. The bottom line is that it may sometimes be desirable or even necessary for a WC to go to court to prevent the erosion of participation rights.

Litigation Under Article 28 of the Dutch Works Councils Act (WOR)

In a 2023 court case, the WC challenged the improper application of the Roster Services Guidelines at Rijkswaterstaat. The WC pursued this matter under Article 28 WOR, in conjunction with Article 36 WOR (the general dispute regulation). The court in Utrecht agreed with the WC’s chosen basis for the procedure. Article 28 WOR establishes the WC’s duty of care. In short, the WC promotes the employer’s compliance with regulations on employment conditions, working conditions, and working hours. The court linked this monitoring and advocacy role to a separate legal standing for the WC in cases where the employer fails to meet its duty of care. This thus extends the WC’s ability to initiate proceedings.

Litigation Under Article 27 WOR

In a subsequent case concerning rosters at Rijkswaterstaat in 2024, which took place under Article 27 WOR (right of consent), the court got the impression that the WC primarily used the procedure to ensure that Rijkswaterstaat would take the WC’s role more seriously, thereby preventing the erosion of participation. Nevertheless, the court did consider the WC’s claim. However, on 15 March 2024, the court dismissed the WC’s requests to declare that consent was required for the decisions or to declare that the WC was justified in nullifying the established rosters.

Respecting Participation Rights

At the end of the ruling of 15 March 2024, the subdistrict court set out several key principles for participation, which the WC and management must observe before deciding to initiate legal proceedings:

  • To exercise its participation rights, the WC must be informed in a timely and comprehensive manner, and this duty should be taken seriously by the employer.
  • On the other hand, the WC is not in the position of the manager.
  • Both parties must respect each other’s responsibilities.

If participation rights are not sufficiently respected, the WC can take legal action on various grounds.

More information

If you have questions about this article or would like advice on a similar issue, please feel free to contact us.

 

This blog is an adaptation of the article ‘WC Rijkswaterstaat Challenges Management Three Times in One Year,’ published on OR/net in April 2024.

Koen Vermeulen

Lawyer / associate partner

\

Related blogs

Previous slide
Next slide

3 December 2025

Don’t count the number of warnings

That five official warnings do not automatically justify a lawful dismissal was once again confirmed in a recent ruling by the Gelderland Subdistrict Court.

Read more

Read more about

30 October 2025

Heineken employee facing termination? We offer legal advice

Heineken has announced a large-scale reorganisation, as a result of which many positions will become redundant. Those employees will be offered a settlement agreement to which a so-called social plan will apply. If this applies to you, please continue reading…

Read more

Read more about

10 September 2025

Does a Validsign signature equal consent?

Employment contracts can end in various ways. For example, a fixed-term employment contract often referred to as a “temporary contract” expires on the agreed date.

Read more

Read more about

27 August 2025

The scope of the redeployment obligation

Does your employer say that you have been dismissed due to organizational changes? Does this mean your position is no longer available?

Read more

Read more about

25 August 2025

Can I go on vacation while sick?

We regularly receive the question of whether sick employees can go on vacation. In this blog, we answer this question and explain the applicable rules.

Read more

Read more about
All articles