Unconditional Request for Consent Creates a Non-Statutory Right to Consent
A discussion of the judgment of the Subdistrict Court of
Utrecht (in preliminary relief proceedings), 15 February 2010, JAR
2010/63
The Facts
An employer ("X") planned to introduce new workwear for
the workers of a special unit ("SU"). X presented this
projected decision to the Works Council for consent. As the Works
Council had objections to certain parts of this intention, it
withheld the consent requested. X then declared its willingness to
abandon the 'obligatory wearing', if the Works Council
would come up with an alternative for this. However, the Works
Council did not present an alternative and maintained its position.
Next, X informed the Works Council that it had decided to introduce
the workwear package as intended anyway. X took the position that
the decision did not fall under the right to consent, but under the
general right of instruction an employer has to introduce workwear.
The Works Council reacted by invoking the nullity of the decision.
X, however, stuck to its decision and informed the Works Council
that it would nevertheless be executed. Eventually the Works
Council requested the court in preliminary relief proceedings to
prohibit the execution of the projected decision. The Works Council
was of the view that a non-statutory right to consent had been
conferred on it, because X had requested the Works Council's
consent without any reservations.
The Judgment of the Subdistrict Court
- Works agreement (Section 32 of the WOR)
The Subdistrict Court held first and foremost that X did not
require the Works Council's consent to its projected decision
purely on grounds of Section 27 of the Works Councils Act (Wet
op de ondernemingsraden, "WOR"). The next question
is whether X had agreed with the Works Council, pursuant to Section
32 of the WOR, that the Works Council was entitled to the right to
consent regarding the decision-making on the workwear package for
the SU workers. The Subdistrict Court answered this question
affirmatively, with reference to legislative history and case law
of, inter alia, the Enterprise Section of the Amsterdam
Court of Appeal. The rule formulated by the Enterprise Section that
a decision is subject to consent if advice was requested to the
Works Council without any reservations or conditions, and the Works
Council assumed on good grounds that the advice requested was meant
to be an advice within the meaning of Section 25 of the WOR, should
be applied analogously to a request for consent. This
interpretation is also a consequence of the rules about the
formation of contracts (by offer and acceptance) and the provisions
concerning juridical acts (justified confidence, will and
declaration). Since X has requested the consent of the Works
Council unconditionally, without any reservations and with explicit
reference to Section 27 of the WOR, the Works Council could
reasonably trust that the right to consent within the meaning of
the law had been conferred on it. The requirements of good
employment practices are yet another reason why X cannot go back on
this anymore.
- Requirement of being in writing of Section 32 of the
WOR
Furthermore, the Subdistrict Court was of the view that the
requirement of being in writing of Section 32 of the WOR had been
met, since X had requested the consent in writing and the Works
Council has used this power granted in writing. It is not necessary
to conclude a separate written agreement. The fact that the right
to consent implies a stronger power does not mean in the
Subdistrict Court's opinion that the question of whether the
requirement of a written agreement has been met should be answered
by applying a stricter test than in a case where a non-statutory
right to advice was conferred.
All in all, in this case the Works Council is entitled to the
right to consent as envisaged in Section 27 of the WOR. The
Subdistrict Court prohibited X, during a period of four months,
from executing the decision on the points to which the Works
Council had not consented. This would give the Works Council
sufficient opportunity to initiate proceedings on the merits, if
necessary.
Points of Attention
- This ruling shows that the conferral of a non-statutory
right to consent is not subject to stricter requirements than a
non-statutory right to advise, even though the right to consent
implies a stronger power than the right to advise.
- When an employer requests consent without any conditions or
reservations, and the Works Council may assume on good grounds
that by the requested consent a consent as set out in Section
27 of the WOR is meant, a non-statutory right to consent will
easily arise. It is important to mention here that the
requirement of being in writing has already been fulfilled if
the employer requests the Works Council's consent in
writing, and the Works Council responds to this in
writing.
- Employers should be aware of the fact that a right to
consent may be conferred on the Works Council this way, and
that an employer cannot simply go back on this. It is therefore
recommended to pay attention to how and for what the employer
requests consent, apart from the subjects provided for by
law.