The ‘right of advice’
If a works council (OR) has been set up within the company, the employer must take into account that in many cases the works council has a right to be consulted if the employer wants to reorganize. The Works Council has this right pursuant to Section 25 of the Works Councils Act (WOR).
The employer must ask the Works Council for advice if he intends to make an ‘important’ decision. This is the case, for example, if a proposed reorganization leads to a significant reduction in the activities of the company and (therefore) in the workforce or an important change in the organization within the company.
A right of advice also applies in some cases to smaller companies where there is no works council but a staff representative body. For example, when it comes to the loss of jobs of at least a quarter of all employees.
When and how should advice be sought?
The employer must request advice at such a time that the advice can still have a substantial influence on the decision to be taken. It is advisable to involve the Works Council at an early stage in the intended decision to reorganize. This can be done informally and the works council can be obliged to keep the information and the reorganization plans secret. If the Works Council is involved at an early stage, possible questions or objections from the Works Council can be responded to and the advisory process can often be completed more effectively and more quickly.
The advice must be requested in writing. In doing so, the employer must indicate which decision he wishes to take, what the reasons are for that decision, what consequences the decision has for the employees working within the company, and what measures the employee is taking to overcome the personnel consequences. The Works Council can request the information from the employer that it needs to be able to give advice.
After receiving the advice
The employer would be wise to await the advice of the Works Council and not to implement its intended decision before that moment, for example by declaring employees redundant or submitting applications for dismissal to the UWV.
After receiving the advice, the employer must confirm its decision to the works council. If the decision is in line with the advice of the works council, the employer can implement the decision.
If the employer does not follow the advice, he must explain why his decision deviates from the advice. If the employer deviates from the advice, a waiting period of one month will start. During that month, the employer may not implement the decision. In that month, the works council can decide to start proceedings with the Enterprise Chamber. The works council can also start a procedure if the employer has asked for advice but has not waited for advice if advice has been requested but the works council has not been given enough time and/or information to give advice, or if facts are known after the advice. are words that made the advice different (and those facts already existed when the works council gave its advice). The Enterprise Section then assesses whether the employer was reasonably able to reach its decision.
An employer can therefore only carry out a reorganization after a formal decision following positive advice from the Works Council or after the month of the waiting period has elapsed without the Works Council having initiated proceedings before the Enterprise Chamber.
