A manifestly unreasonable decision?
Enterprise Section of the Court of Appeal of Amsterdam, 10
December 2009, JAR 2010/36
Right of Appeal of the Works Council
The right of appeal as set out in Section 26 of the
Dutch Works Councils Act (Wet op de Ondernemingsraden,
'WOR') forms an important addition to the right to advise
of the Works Council. The Works Council may institute an appeal
if:
- it has given an advice that was not or not entirely
followed by the employer;
- it has not given an advice, either because the employer has
not requested the Works Council's advice contrary to its
statutory obligation, or because the Works Council was not able
to give an advice (for example because there was too little
time or too little information available);
- the employer's decision is in accordance with the
advice of the Works Council, but after the Works Council gave
its advice, facts or circumstances have become known which, had
the Works Council been aware thereof in time, could have led to
a different advice from the Works Council.
If the Enterprise Section considers the appeal well-founded, it
declares that the employer could not reasonably have reached the
relevant decision upon due consideration of the relevant interests.
In other words, in that case the decision is manifestly
unreasonable.
A Manifestly Unreasonable Decision?
Recently, in December 2009, the Works Council of the Amsterdam City
Surveillance Service (Dienst Stadstoezicht Amsterdam)
applied to the Enterprise Section of the Court of Appeal in
Amsterdam with the request to declare a decision manifestly
unreasonable.
Below, I will first give a brief explanation of the facts on
which this request of the Works Council was based. Among the tasks
of the Amsterdam City Surveillance Service are seven so-called
non-municipal tasks, also referred to as tax enforcement. Tax
enforcement is gradually being outsourced more and more often to
private parties. On 3 July 2007 the Municipal Executive took the
decision in principle to spin off tax enforcement. On 28 April 2008
the projected decision to spin off and assign tasks to Cition B.V.,
and the projected decision for the internal organization of City
Surveillance after the spin-off, were presented to the Works
Council for advice. In a letter of 15 April 2009 the Works Council
gave a negative advice. On 21 April 2009 the employer notified the
Works Council that it would take the decision anyway, despite the
negative advice of the Works Council.
The Works Council then decided to use its right to appeal
pursuant to Section 26 of the WOR, and put forward that the
employer - the City of Amsterdam - in duly considering the relevant
interests, could not reasonably have arrived at its decision of 21
April 2009 to spin off the task of tax enforcement, because the
employer had insufficiently involved the Works Council's advice
in the process that has led to the contested decision.
The Enterprise Section established that the Works Council did
not contest the grounds of the decision in principle of 3 July
2007, as it was not disputed that the existing situation at the
Amsterdam City Surveillance Service cannot continue because its
clients consider its provision of services to be too expensive.
These starting points have logically led to the decision in
principle of 3 July 2007 and to the projected decision for a
spin-off. In the opinion of the Enterprise Section, the fact that
it is still unclear when the spin-off will take place - which the
Works Council put forward as an objection - does not lead to the
conclusion that the employer could not reasonably have arrived at
the decision. The Enterprise Section therefore denied the request
of the Works Council.
Tips:
- Both the employer and the Works Council must be aware at
all times of the fact that a decision in principle may have
far-reaching consequences. So if you do not agree with possible
consequences of such a decision in principle, make sure to
sound the alarm in good time.
- A Works Council should not only address its objections to
the consequences of a decision, but also to the underlying
decision or decision in principle.