Works Council’s Right to Consent for Individual Decision Possible as an Exception
A discussion of the judgment of the Court of Appeal of
Amsterdam, 9 March 2010 LJN: BN1325
Right to
Consent of Works Council Regarding Appointment Policy of the Police
Force
This case is about an appointment decision of the
Amsterdam-Amstelland Police Force ('the Police Force'). In 1995,
the public sector became subject to the co-governance regime of the
Dutch Works Councils Act (Wet op de Ondernemingsraden,
"WOR"). Public service employers therefore also require the consent
of the Works Council for each of their projected decisions for the
adoption, amendment or repeal of any arrangement regarding the
appointment policy (Section 27 (1) (e) of the WOR.) This includes,
for example, rules with regard to job application procedures,
hiring certain categories of employees, and the type of
appointments. In the event such a decision is taken without the
consent of the Works Council, the Works Council may request the
Subdistrict Court, inter alia, to issue a declaratory
judgment that the decision is void and to compel the employer to
refrain from executing the decision.
Facts, Arguments
and Course of the Proceedings
The Police Force had appointed Mr. C as Chief of Operational
Affairs District 1. The Works Council was of the view that the
Police Force needed the Works Council's consent to do so, and
argued that the appointment decision implies a change in the
appointment policy. According to the Works Council, this policy
stipulates that applicants to the relevant position must have
obtained a university degree. Furthermore, the Confidential
Committee should be given the opportunity to speak with the
applicant and to issue an advice to the chief of police. In the
opinion of the Works Council, neither requirement had been met.
Consequently in the opinion of the Works Council the decision to
appoint Mr. C implied a change in the appointment policy. It
therefore requested the Subdistrict Court to issue a declaratory
judgment that the appointment policy required the consent of the
Works Council and that due to the absence thereof, the decision is
void. The Court denied this request, whereupon the Works Council
lodged an appeal.
The Court of Appeal
The Court of Appeal also rejected the request of the Works
Council. With regard to the dropping of the educational
requirement, the Court of Appeal held that the Police Force could
not be considered to maintain a line of conduct in which the
educational requirements (as apply in the opinion of the Works
Council) systematically appear to be deviated from. According to
the Court of Appeal, there are no relevant examples to prove that
there is such a line of conduct. As for the failure to involve the
Confidential Committee in the decision, the Court of Appeal held
first and foremost that the Confidential Committee had indeed been
given the opportunity to speak with Mr. C, but that this talk had
not taken place. Nevertheless, it would not have been out of place
for the police chief to again ask the Confidential Committee for
advice, instead of hurrying to appoint Mr. C. However, the Court of
Appeal regards this as an incident, from which no change of policy
can be deduced. On the basis of the foregoing the Court of Appeal
reached the conclusion that the appointment decision cannot be seen
as having a general scope, which is a requirement for the right to
consent to exist.
Tips:
- The rules set out in the WOR, such as the obligation to ask
the advice of the Works Council before taking certain decisions
or to submit these decisions to the Works Council for consent,
also apply to employers in the public sector.
- If an employer wishes to change the appointment policy
within the organization, it has to request the Works Council's
consent. The employer's systematic deviation from the rules
arising from this policy may already constitute a change of the
policy.
- The employer's failure to request the Works Council's
consent although this is required may cause a court to nullify
the decision taken and to order the employer to reverse the
consequences thereof.