A Wider Interpretation of the Concept of ‘Entrepreneur’
The Netherlands Broadcasting Authority (Nederlandse Omroep
Stichting ("Stichting NOS")) operates two
enterprises, namely the Netherlands Public Broadcasting
(Nederlandse Publieke Omroep ("NPO")) and NOS
RTV. Both enterprises have a Works Council. In brief, the NPO, as
the administrative part of Stichting NOS, carries out the duties
and powers that have been granted to Stichting NOS by law, in so
far as these duties and powers do not relate to 'the making of
a program'. The duty 'the making of a program' is
carried out by NOS RTV. In accordance with the Media Act, the board
of Stichting NOS has appointed a program director with NOS RTV.
In the run-up to the adoption of the annual plans for the
various public radio stations, on 6 May 2008 the station manager of
Radio 1 sent a proposal to the editorial staff of the station,
which proposal was also discussed with the editorial staff on 8 May
2008. The editorial staff of the station consists of, inter alia,
representatives of NOS RTV. Next, on 22 May 2008, the draft 2009
annual plan of Radio 1 was discussed with the editorial staff. In
the end, the board of NPO adopted the 2009 annual plan for Radio 1
on 17 June 2008.
The Works Council of NOS RTV has lodged an appeal against
Stichting NOS with the Enterprise Section. In the view of the Works
Council, the program director has instructed the representatives of
NOS RTV who are members of the editorial staff with respect to the
meeting of 22 May 2008 in such a manner that there has been a
decision of the program director, or at any rate that the
instructions were preceded by a decision. The Works Council is of
the view that it has wrongly not been consulted with regard to the
decision of the program director of NOS RTV of 22 May
2008.
The Enterprise Section
The Enterprise Section has denied the request of the Works
Council because the amendments that would have been included in the
decision were already brought forward in the letter dated 6 May
2008 and the draft 2009 annual plan of 22 May 2008. Therefore,
there is no question of a new decision. So far, this judgment
offers almost nothing new. Nevertheless, in this judgment the
Enterprise Section has revealed - between the lines - a remarkable
interpretation of the concept of 'entrepreneur' within the
meaning of the Works Council Act (Wet op de
Ondernemingsraden ("WOR")). In only one sentence the
Enterprise Section has observed that Stichting NOS, the respondent
in these proceedings, cannot be regarded as the entrepreneur who
has taken the disputed decision. It can be concluded from this
observation that the Enterprise Section is of the view that NOS
RTV, although not in this case, can theoretically be regarded as
the 'entrepreneur'. This view can be qualified as
remarkable, because NOS RTV does not have corporate personality
and, in addition, is not a natural
person.
'Entrepreneur' Within the Meaning of the
WOR
The concepts of 'entrepreneur' and 'enterprise'
within the meaning of the WOR must be distinguished well. In the
WOR entrepreneur means the natural person or the legal person who
operates the enterprise, in other words who provides the material
means for the enterprise to be able to perform. The enterprise is
the proper industrial organization. It is a collaborative venture
of people which presents itself in society as an independent unit.
The entrepreneur is therefore the one who operates the industrial
organization. An entrepreneur can operate various enterprises.
According to the current interpretation, the entrepreneur is a
legal person. The present judgment would stretch the concept of
entrepreneur within the meaning of the WOR to non-legal persons,
not being natural persons. The question is whether this was the
intention of the Enterprise Section or whether it has unconsciously
ignored the fact that Stichting NOS is the
entrepreneur?
Consequences
In our view, the latter is the case and the Enterprise Section
has unconsciously ignored that Stichting NOS is the entrepreneur.
After all, the Enterprise Section has assumed as an established
fact that Stichting NOS operates two enterprises. In view of the
concept of entrepreneur within the meaning of the WOR, Stichting
NOS must therefore be regarded as an entrepreneur. However, time
will tell whether the present case is an incident or whether the
decision of the Enterprise Section was a conscious choice after
all.