Right to Information in Advisory Procedure
A discussion of the ruling of the Enterprise Section of 30
December 2008, ARO: 2009/13
Right to Information
In Section 31 subsection 1 of the Dutch Works Councils Act (Wet
op de ondernemingsraden, "WOR"), the right of the Works
Council to information is related to the duties it has to perform.
The Works Council always has to state concretely for the purpose of
which duty or advice it wishes to receive certain information. The
employer is obliged to provide the information requested as soon as
possible.
The Facts
The employer has two branches: one in Amersfoort
and one in Amsterdam. Already in 2004 and 2006 the employer had
considered joining the branches and relocating the Amersfoort
branch to Amsterdam. However, this plan was not carried through. In
April 2008 the employer requested the Works Council's advice
about the intention to close the Amersfoort branch and to relocate
all activities to Amsterdam before 31 December 2008. The Works
Council found the request for advice too sketchy and asked the
employer for more information in May 2008. After the Works Council
had further specified the information it desired, the employer gave
an extensive answer to the questions in a letter dated 27 June
2008. On the basis of that information the Works Council rendered a
negative advice, with the argument that, in its opinion, the cost
savings would turn out higher if the Amersfoort branch would remain
open until the lease term agreed would have expired. According to
the Works Council, the small financial advantage of an earlier
closure was not proportionate to the consequences such a closure
would entail for the employees. In addition, the Works Council
stated that the Social Plan of which a draft was drawn up offered
the employees insufficient compensation for the consequences of the
relocation. On 8 September 2008 the employer decided - despite the
negative advice of the Works Council - to go ahead with the
relocation as of 31 December 2008. The Works Council disagreed with
this decision and lodged an appeal, with the argument that the
employer had paid insufficient heed to the consequences of the
decision for the employees, and had not given a substantial
reaction to the alternative.
Opinion of the Enterprise
Section
The Enterprise Section shared the opinion of the Works Council
that the request for advice was sketchy. However, the employer did
provide sufficient information later on. Therefore this failure was
not of such nature as to cause the decision to be manifestly
unreasonable. Moreover, the Works Council itself said in its advice
to the employer that 'with this it has (got) the opportunity to
form a substantial opinion'. Furthermore, the Enterprise
Section looked at the contents of the draft social plan and studied
the way it came into being. The Enterprise Section was of the view
that in the talks about the social plan the employer has carefully
paid heed to the interests of the employees for whom the relocation
will have consequences. The Enterprise Section also took into
account that the social plan was discussed - with the approval of
the Works Council - not with the Works Council but with the trade
unions, and that there is no evidence of any objections brought
forward by the trade unions. Furthermore, the employer has declared
on several occasions that jobs would be preserved. The Works
Council has failed to make plausible that this promise will not be
fulfilled. Finally, the Enterprise Section thought that the
employer had devoted sufficient attention to the alternative plan
that was proposed by the Works Council. As a consequence, the
Enterprise Section held that the decision was not manifestly
unreasonable, and it denied the request of the Works
Council.
Tips
• For employers: if you submit an (all too) sketchy request for
advice, be aware of the fact that you may repair this by providing
further information at the request of the Works Council.
• For Works Councils: if you think that the information you have
received from the employer is too scarce to enable you to give a
sound advice, you may request additional information from the
employer at all times. Be sure always to indicate specifically what
information you wish to receive and the reasons why. The
responsibility to determine what information you need in order to
give advice lies first and foremost with the Works Council, not
with the employer.
• Only give your advice as a Works Council if you are sure you have
received sufficient information as allows you to give advice. Once
you have given your advice, you may no longer complain to the
Enterprise Section afterwards that you had not received sufficient
information from the employer to give a sound advice.