25 November 2024
Nearly one-third of companies with more than 50 employees do not have a works council (WC).
This is incorrect, as the law obliges such companies to establish a works council. The responsibility lies with the employer. If the employer fails to comply with the Dutch Works Councils Act (WOR), employees who wish to establish a works council can take the matter to the subdistrict court.
In December 2023, we wrote that the Minister of Social Affairs and Employment (SZW) would introduce regulations to put more pressure on compliance with the WOR, as it had already been established that 31% of companies with more than 50 employees do not have a works council. On 23 May 2024, the minister presented follow-up research showing various reasons why a WC has not been established in these companies. Regardless, the minister noted that it is up to the employer to make efforts to establish a WC. Employers should motivate employees and ensure clear communication and information about what a WC does, according to the minister. She further announced that in 2025, she would introduce “policy instruments” to promote compliance with the WOR concerning the establishment of a WC in companies with 50+ employees.
Employees already have the option to enforce the establishment of a WC through the subdistrict court, though this is rarely done. A recent exception is a judgment by the Subdistrict Court of Zaanstad on 7 February 2024 regarding the recognition—not so much the establishment—of the WC at BurgGolf’s golf courses.
The former director and HR manager of BurgGolf recognised the statutory obligation to establish a WC in early 2023 and took steps towards this. BurgGolf also outlined the steps to interested employees, such as appointing a temporary chairperson, establishing regulations, nominating candidates, and organising elections. Eventually, six WC members were appointed without elections, thus completing the establishment of the BurgGolf WC.
The new statutory director had a different view at the end of 2023 and was unaware of the existence of a (legally valid) WC. At that time, a potential takeover of BurgGolf was on the table, about which the WC had not yet received a request for advice and had many questions. To ensure its role in this advisory process, the WC went to the subdistrict court to enforce recognition as a WC.
The subdistrict court found that a WC had been validly established and that BurgGolf had always acted as if there was a fully functioning, legally valid WC. Any formal deficiencies in the establishment and composition, such as those concerning elections, were outweighed by BurgGolf’s statutory obligation to establish a WC and implement employee participation. This is precisely the obligation the minister has recently emphasised.
However, this did not lead to the summary judgment sought by the WC for recognition. Nevertheless, the court required BurgGolf to treat the WC as a legally valid WC; BurgGolf must therefore simply comply with the WOR.
This ruling confirms the existing options for so-called private law enforcement of the WOR via the courts. Whether the minister will introduce public law enforcement of the WOR in 2025 remains to be seen. In any case, as this recent ruling shows, the WC currently has sufficient options for enforcing the WOR through the courts.
If you have any questions about this article or require advice from an employment law attorney, please contact us.
