Concept of ‘Working for the Undertaking’ of the WOR
Court of Amsterdam (Subdistrict section, Court in
preliminary relief proceedings), 1 March 2010, JAR 2010/94
In Section 12 of the Works Councils Act (Wet op de
Ondernemingsraden ('WOR')) it is stipulated that the
membership of the Works Council ceases by law when this member
ceases to work for the undertaking. When someone is or is not
regarded as 'working for the undertaking' is defined in
Section 1 of the WOR. Subsection 2 of this Section stipulates that
this means: 'persons who work for the undertaking who have
been appointed under public law or under a contract of employment
entered into with an employer who operates an
undertaking'. It appears from legislative history that two
criteria must be met in order to fall under the scope of Section 1,
Subsection 2 of the WOR: a legal and a factual criterion. The
first, legal criterion means that only a person who works for the
undertaking (on the basis of a contract of employment or appointed
under public law) meets the definition. The factual criterion means
that in addition the employee must actually be working for the
undertaking.
Dispute
The fact that (the interpretation of) the above-mentioned
definition is not entirely clear, appears from the fact that this
is regularly under discussion. Is a Works Council member actually
still working for the undertaking if he or she takes leave for more
than a year and next leaves the employment?
Recently, the Court of Amsterdam, Subdistrict section, expressed
an opinion on this question. In this case an employee had made use
of the early retirement scheme. Prior to the retirement the
employee took leave of more than one year. The employer took the
position that the employee could not perform any work as a member
of the Works Council anymore, since - also in view of the fact that
he would subsequently leave the employment - he was no part anymore
of the daily course of affairs within the company and also could
not maintain any ties with the employees anymore. In the opinion of
the employer, as of the start date of his leave the member of the
Works Council was therefore de facto not working for the
undertaking anymore. The Works Council had a different opinion and
claimed before the Subdistrict Court that the employer would be
obliged to enable the employee to perform his work as a member of
the Works Council.
Judgment of the Subdistrict
Court
The Subdistrict Court first determined that Section 12,
Subsection 3 of the WOR prescribes that when a member of the Works
Council ceases to work for the undertaking, his membership of the
Works Council ceases by law. The dispute therefore revolved around
the question what 'working for the undertaking' should
mean.
In the event of relatively short interruptions, such as sickness
and holidays, an employee remains working for the undertaking. The
Subdistrict Court was of the opinion that due to the fact that
incapacity for work may continue for a period of two years, this
period should be taken as a maximum starting point when assessing
whether an interruption is a 'short' interruption. The
leave of the employee of more than a year is, in the opinion of the
Subdistrict Court, not such that he is not working for the
undertaking anymore. According to the Subdistrict Court, the fact
that the employee will not return after his leave, does not alter
this.
The Subdistrict Court held that the fact that the employee will
not be involved in the course of affairs within the undertaking
anymore and the decisions which the Works Council has to assess do
not concern him anymore, do not lead to another judgment. The claim
of the Works Council was allowed.
Tips:
- On the basis of this judgment the maximum period of
incapacity for work during the employment, i.e. two years, must
be taken as a standard for the answer to the question of
whether there is a 'short' interruption;
- If you suspect that this situation might happen, you should
make prior, clear, individual arrangements about the exercise
of co-governance rights during interruptions and (long-term)
leave of a member of the Works Council.