In addition to the regular works council (OR), other special works councils can be set up on the basis of the WOR. Which employee participation structure suits your organization often depends on the actual situation. Questions such as: what is your organizational structure? Is there a common company policy or are there only certain common interests? It is very important that you set up your employee participation structure properly, since the speed and quality with which decisions can be taken within your organization in particular, and therefore the functioning of your organization often depends on the quality of this structure.
Duration of advisory procedure OR
The duration of the works council’s advisory procedure is not a fixed time and the entrepreneur cannot simply determine when the works council should issue its advice. How much time should there be between the request for advice and the advice? What rules apply to this? There is an increased demand for this problem. The law does not contain any provision on the duration of the advisory procedure. It is only stipulated that the request for advice must be discussed at least once in a consultation meeting.
The following guidelines can be derived from case law. The point is that the period is ‘reasonable’, whereby it is important that the entrepreneur and the Works Council must take each other’s interests into account. Naturally, the complexity of the proposed decision plays a role here, both organizationally and in terms of personnel consequences. It is also important when the necessary information and substantiation are provided to the Works Council and when (further) questions are answered by the entrepreneur. Furthermore, the possible wish of the Works Council to seek external advice, the degree of involvement of the Works Council in the preliminary phase, and the urgency of the issue also play a role.
In practice, the entrepreneur and works council often succeed in reaching a deadline for the advice. If not, the reasonable term will commence from the moment that the works council has received the substantiation from the entrepreneur. A rule of thumb of a duration of one month is not realistic. In mutual consultation, the entrepreneur and works council almost always come to an agreement. If not, a well-founded ultimatum offers the solution.
In the case of a sale of the company, the moment and the way in which the works council must be involved in the decision-making process means that a dialogue must take place between the works council and the entrepreneur. The works council must be involved in the bidding process at such an early stage in the form of a request for advice that it can still exert a substantial influence on the choice between the various bidders. This advisory moment is expected to lead to more and more process agreements being made about the moment and the way in which the Works Council will be further involved in the (sales) process.
In addition, the Works Council has a far-reaching right to information/underlying documents, unless there are compelling reasons not to share this information. This seriousness is not an issue any time soon, given the duty of confidentiality that can be imposed on the works council.
Bankruptcy
Can the WOR also apply during an employer’s bankruptcy situation? The Supreme Court ruled that it is irrelevant whether a company has been declared bankrupt or not; if a company is (continuously) maintained (and this also applies if the trustee wished to resell the company), the WOR must be observed. If the trustee exercises the powers of the entrepreneur during the bankruptcy and as such can be equated with the entrepreneur within the meaning of the WOR, the WOR therefore applies. It should therefore also be examined during bankruptcy situations whether the WOR applies or whether the Works Council should be involved in a decision.
