The Request for Advice and the Obligation to Provide Information
Section 31 of the WOR provides that the employer must provide
the Works Council with all information and data reasonably required
for the performance of their duties. Pursuant to Section 25 of the
WOR, the employer must furthermore provide a statement of the
grounds for the projected decision, the anticipated consequences
(for the staff), and his projected measures on account thereof -
without being asked - within the framework of a request for advice.
The employer is obliged to provide this information simultaneously
with the request for advice. On 5 December 2008 the Enterprise
Section confirmed that these requirements also apply in the case of
a request for advice in broad outline.
The
Facts
During a consultative meeting between the Works Council and the
employer, a water laboratory, it was mentioned that the employer
had been engaged in talks about a possible merger for about one
year already. After this consultative meeting the Works Council
requested the director various times to provide further information
about a number of topics related to the merger, and to make
arrangements about the role of the Works Council. The employer did
not respond to this request. Some months later, on 12 February
2008, the employer requested the advice of the Works Council about
the projected merger. However, the request for advice did not
contain the information about the consequences for the staff to be
expected and the measures to be taken in connection therewith.
Despite various requests of the Works Council to that effect, the
employer also refused to provide this information later. In brief,
the employer took the position that he did not have to provide the
information about the consequences for the staff and the social
plan, because he only requested advice about the merger resolution
in broad outline, and the consequences for the staff would be
addressed in a procedure to follow afterwards.
The Works Council was of the view that this was a violation of
its right to information. It stated that, because of the lack of
the requested information, it felt unable to give advice about the
projected merger. Nevertheless, the employer stated to the Works
Council on 24 June 2008 that he had meanwhile taken the decision to
go ahead with the merger. The Works Council was of the view that
the employer should have awaited its advice and that without the
advice of the Works Council he could not reasonably have reached
his decision. The Works Council then brought an appeal to the
Enterprise Section against the employer's
decision.
Decision of the Enterprise Section
The Enterprise Section was of the view that the provision of
information by the director had been slow and defective. In
addition, the employer had not provided a part of the information
requested to the Works Council at all. It does not make a
difference that it concerned an advice and questions in broad
outline. The Enterprise Section referred to Section 25(3) of the
WOR, from which it arises that the projected merger resolution
should have been provided with an overview of the expected
consequences for the staff and the measures taken on account
thereof.
Against this background the Enterprise Section ruled that the
employer could not reasonably have reached his decision. The
Enterprise Section ordered the employer to withdraw the decision
and to undo the consequences thereof.
Tips:
- Along with the request for advice, it is necessary to
include an overview of the ground(s) for the decision, an
overview of the consequences the decision will have for the
employees, and of the measures intended on account thereof. In
principle this rule applies also if the request for advice
concerns broad outlines.
- If the Works Council asks for more information, the
employer should accede to this as much as possible. It follows
from established case law that in principle it is not up to the
employee, but to the Works Council to determine what
information it needs to be able to give an advice as referred
to in Article 25 of the WOR.
- Finally, it is advisable- even though Section 25(3) of the
WOR does not set this as a condition - to provide the
above-mentioned overviews in writing. This way unnecessary
misunderstandings can be avoided.