Respecting Works Council’s Participation Rights

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.