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"What is your most important tip for works councils?" As a co-determination lawyer, I get this question regularly. My answer is always the same: make sure you're involved early. Not when all the plans are already on paper, but when there are still real choices to be made. Of course, the executive must follow the rules. Follow the Works Councils Act (WOR). Ask for advice. But those who really want to have influence need to be at the table earlier. When plans are still taking shape. When alternatives are still open. When external advisors have yet to receive their assignments. Because a works council that only wants to be involved at the advice request stage is often too late to make a real difference. Renate Vink-Dijkstra and I recently commented on a case in the JIN journal that illustrated this again.
In early 2022, SABIC investigated the possibility of moving its European headquarters from Sittard-Geleen to Amsterdam through an external advisor. In August, SABIC submitted advice requests to the works councils of both the Sittard-Geleen and Bergen op Zoom locations. Although there was a lot of consultation and mitigating measures were agreed upon, such as financial compensation and considering travel time as working time, both works councils advised negatively in July 2023. SABIC decided to proceed with the move anyway.
The Enterprise Chamber (OK) ruled that although SABIC had involved the works councils too late, this deficiency was later remedied through intensive involvement. According to the OK, the works council had been able to exert significant influence on the personnel consequences, resulting in measures such as financial compensation and considering travel time as working time. Since SABIC had also sufficiently substantiated the strategic reasons for the move and explained why it deviated from the works council's advice, the works councils' objections were dismissed.
In this case, we see a classic pattern: first, a consultancy was engaged, then a principle decision was made at the group level, and only then was the works council allowed to participate. The result? The works council could only negotiate the personnel consequences. There was little influence left on the main decision.
This aligns with the case law, was our conclusion.
The right to advice is an important right, but if you only get involved at the advice request stage, your influence is often limited in practice. What can you do if you want more influence, even if the influence of the Dutch works council on a decision is sometimes small?
Practice shows: the earlier you as a works council participate, the greater the difference you can make. So seek dialogue with the executive. That's where effective co-determination begins.
Do you want to discuss your situation? Feel free to contact our co-determination experts. Curious about our annotation? Send an email to j.vos@declercq.com.
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