An analysis of five years of Enterprise Chamber case law on the works council's advisory rights

One of the most important rights of the works council is the advisory right pursuant to Article 25 of the Works Councils Act (WCA). This advisory right is connected to proposed decisions on financial-economic and business organisational matters and offers the works council the opportunity to obtain information and provide advice on important matters concerning the enterprise.

The advisory right is linked to a right of appeal under Article 26 of the WCA, on the basis of which the works council can lodge an appeal with the Enterprise Chamber of the Amsterdam Court of Appeal (OK).

In the Chronicle, we have analysed all decisions concerning the works council’s right of appeal between 2020 and 2024 and provided statistics on the success rate of works councils lodging appeals.

Following the analysed decisions, which provide further insight into the manner in which the Enterprise Chamber reviews cases, we conclude with the following recommendations.

For the entrepreneur:

• Prepare the decision well, with substantiated motives and estimates of future effects.
• Involve the works council in good time and provide sufficient information.
• Respond substantively and with proper reasoning to objections or alternatives from the works council.
• Adopt elements of the advice where appropriate (not mandatory).
• If these steps are followed, the decision will only be assessed marginally for reasonableness and explainability, which means that the chance of the OK granting an appeal is small(er).

For the works council:

• Contribute actively to a good advisory process and bring problems to attention in good time.
• Study the request for advice thoroughly and critically, ask questions, consult the constituency and engage experts where appropriate.
• Formulate well-reasoned objections and alternatives in the advice.
• Assess, in the event of the employer deviating from the advice, whether an appeal is worthwhile, possibly as a means of pressure.

If the entrepreneur and the works council learn from this, they will jointly raise employee participation to a higher level and avoid having to go to the Enterprise Chamber. Otherwise, a good knowledge of the Enterprise Chamber’s case law provides insight into the chances of success of a potential appeal.

For those interested, our Chronicle (in Dutch) can be consulted. We would be happy to explain further. Please contact: Niels van Boekel & Puck van Genuchten.