20 January 2025

Respecting co-determination rights

Works councils do not often take legal action against their own management. Typically, they try to resolve disputes through constructive dialogue with the management or entrepreneur, which is often the preferred approach. However, if dialogue fails, works councils (WC) have several legal avenues available.

Using a couple of court rulings on the strained relationship between the works council of Rijkswaterstaat and its management, I will illustrate this point. The bottom line is that, at times, it may be necessary or advisable for a works council to go to court to prevent the erosion of co-determination rights.

Litigation under article 28 of the WOR

In a 2023 case, the works council challenged the incorrect application of the “Leidraad Roosterdiensten” (Roster Guidelines) at Rijkswaterstaat. This was pursued under article 28 of the Dutch Works Councils Act (WOR) in conjunction with article 36 WOR (the general dispute resolution provision). The court in Utrecht accepted this legal basis proposed by the works council.

Article 28 of the WOR assigns a duty of care to the works council, aimed at promoting compliance by the entrepreneur with regulations concerning employment terms, working conditions, and working hours. The court linked this supervisory and stimulating role to a specific procedural competence, enabling the works council to initiate proceedings when the entrepreneur fails to fulfill these responsibilities. This expands the works council’s ability to take legal action.

Litigation under article 27 of the WOR

In a subsequent case in 2024 concerning the same roster guidelines, proceedings were initiated under article 27 WOR (the right of consent). The court observed that the works council appeared to use the proceedings primarily to compel Rijkswaterstaat to take the council’s role more seriously, aiming to prevent the erosion of co-determination rights.

Despite this, the court proceeded to hear the works council’s claims. However, the council’s requests to declare that certain decisions required consent, or to declare that the invalidation of the established rosters was justified, were dismissed by the court on March 15, 2024.

Respecting co-determination rights

At the conclusion of its March 15, 2024 ruling, the subdistrict court highlighted several key principles of co-determination that both the works council and management must observe before considering litigation:

The works council must be timely and fully informed to exercise its co-determination rights, and the entrepreneur must take this responsibility seriously.
Conversely, the works council should not assume the role of the management.
Both parties must respect each other’s responsibilities.
If co-determination rights are not adequately respected, the works council can take legal action on various grounds.

More Information

Do you have questions regarding this article, or would you like advice on a similar issue? Please feel free to contact us.

This blog is an adaptation of the article “OR Rijkswaterstaat daagt bestuurder drie keer in 1 jaar”, published on OR/net in April 2024.

Koen Vermeulen

Lawyer / associate partner

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