Commencement of the Period for Appeal and Awaiting Advice from the Works Council
Sections 25 and 26 of the WOR
Pursuant to Section 25 of the WOR, the Works Council of an
enterprise is given the opportunity to advise about each projected
decision that concerns the topics of which a comprehensive list is
given in that Section. If the decision does not conform to the
advice or if new facts and circumstances have become known which
could have influenced the advice, or if the advice is not followed
(in part), the Works Council may appeal against the
entrepreneur's decision to the Enterprise Section of the Court
pursuant to Section 26 of the WOR.
The Facts
APM Terminals ("APM") engages in the terminal handling
in the port of Rotterdam. It has its own employees, but hires
external operators. APM and its Works Council have agreed that when
more than 10 persons are contracted by APM as a group, this is a
matter that requires the advice of the Works Council.
In October 2006 APM submitted a request for advice to the Works
Council for the secondment of 100 to 120 operators through three
outsourcing companies: SHB, ILS and Matrans. In December 2006 APM
asked the advice of the Works Council about the extension of the
contract with SHB. The Works Council notified APM in a letter of 15
February 2007 that its advice about the secondment of the 100 to
120 operators was negative. APM stated that it would take the
decision anyhow.
On 12 June 2007 APM stated at the consultative meeting with the
Works Council that the negotiations about the extension of the
contract with SHB were still going on. APM asked the Works Council
to put its wishes and objections down in writing. On 12 July 2007,
however, it appeared at a meeting between APM and the Works Council
that the contract had already been signed. The Works Council was of
the view that the request for advice had not been completed yet and
that APM had wrongly failed to await the Works Council's
advice. Therefore the Works Council appealed to the Enterprise
Section. APM took the position that the Works Council had combined
both requests for advice in the negative advice of 15 February
2007, and that there were no two separate requests for advice.
Since the decision had already been taken, APM was also of the view
that the period for appeal had lapsed.
The Enterprise
Section
The Enterprise Section followed established case law in order to
determine the commencement of the period for appeal pursuant to
Section 26(2) of the WOR. As a result, the day of the written
notification that a decision has been taken is decisive. The
decision about the extension of the contract with SHB was only
known to the Works Council since the meeting of 12 July 2007. It
cannot be understood that the Works Council was already aware, or
could have been aware, of the decision-making. Therefore the period
for appeal has not commenced any earlier than at that time. The
Enterprise Section further held that there has been no
misunderstanding that there were two separate requests for advice,
even if there was a close coherence between the two in several
respects. If the decision regarding which advice was sought in
December 2006 had already actually been taken, then the advice of
the Works Council had not been awaited. For that reason alone, the
decision is manifestly unreasonable, because the co-governance
rights safeguarded by law have been violated. In the case at issue
there are no reasons to deviate from that starting point. Therefore
the decision has to be withdrawn, and the consequences of the
decision have to be undone.
Tips
- If an enterprise asks the advice of the Works Council about
several (projected) decisions between which there is a close
connection, in principle there are separate decisions. It is
important that both during the request for advice and during
the advice of the Works Council there is clarity about the
question of whether the coherence between the projected
decisions is such that the request for advice and/or the advice
regarding these decisions can be combined.
- If the request for advice and/or the advice are not
combined, the advice regarding each decision must be awaited
separately. If the advice of the Works Council is not awaited
in that case, the result will be that the decision is
manifestly unreasonable.
- It may also be important in connection with the period for
appeal whether or not requests for advice are combined. The
period for appeal starts at the moment when the decision is
notified to the Works Council in writing. This is established
case law that is not deviated from in the case at issue. Thus,
it is also important with regard to the period for appeal that
there is clarity about the question of whether there is one
decision or whether there are two separate decisions.