2 August 2025
The Dutch Works Councils Act (WOR) has existed for 75 years. That was a reason for Or/net to ask members of works councils how the law could be improved.
A major wish among works council members is greater clarity about when there is an “important” intended decision. This is crucial for the works council: if the employer’s proposal meets the requirement of importance, the works council has a right to advice; if not, it does not. This blog explains this concept for the works council.
Or/net’s research shows that works councils consider Article 25 WOR the most important article. In several places, it states that the works council only has a right to advice if the intended decision is “important”. For example, in the case of a “significant reduction” in the business’s activities. It is already clear from this that not every reorganisation is subject to advice. The same applies to a “significant change in the organisation” or a “significant investment” or the raising of “significant credit”: only then does the right to advice arise. The works council’s wish for more clarity on when the requirement of “important” is met is understandable.
Case law of the Enterprise Chamber already provides some guidance on this. The decision must be extraordinary and not part of the everyday management of the business, and it must be capable of having substantial consequences for the enterprise. This concerns so-called social, procedural and economic/organisational factors surrounding the intended decision. Social factors relate to the impact on employees: what are the consequences for employment and work duties, and how many employees are affected by the decision?
Even the dismissal of one employee can still fall within a “significant reduction” or organisational change if that person holds a key position or manages a large team. Procedural factors look at how often such decisions are taken, as well as the duration of the decision. In terms of economic/organisational factors, it matters whether the matter concerns a core activity of the business and how turnover is affected by the decision.
What is therefore assessed is the scale and nature of the business’s activities and the impact of the decision on the business. In that sense, it is an assessment of all circumstances of the конкретe case. What may be considered an important, unusual decision for one business does not have to be an important decision for another. As a guideline when considering whether an intended decision is or is not important, the direct and indirect consequences for the persons employed in the business may be used as a benchmark.
What questions can the works council ask itself and the employer, for example, in the case of a proposed reorganisation for which no advisory request has yet been received?
When determining whether a decision is “important” and therefore subject to the right to advice, quantity is often the key factor: what percentage of turnover is affected, or how many roles will disappear as a result of the decision? But even if those numbers are limited, a decision can still be important if it affects a large part of the organisation. If the works council believes that a right to advice exists and the employer has wrongly failed to grant it because the requirement of “importance” was allegedly not met, it is up to the employer to make it plausible why that requirement has not been satisfied. If the employer cannot do so, the works council does in fact have a right to advice.
Case law shows that in the event of an organisational change with personnel consequences, an intended (reorganisation) decision will quickly be regarded as “important”. The works council should be alert to this. If you have any questions about this, the employment and employee participation lawyers of GMW lawyers are ready to assist the works council.
Do you have any questions arising from this article? Please contact us for advice.
