Additional Powers for the Works Council? And How to Properly Document Them

The Dutch Works Councils Act (WOR) defines the standard powers of a Works Council (OR). These powers can be expanded. Sometimes this occurs through a collective labour agreement (CAO) or a regulation for public institutions, in which case the expansion applies sector-wide. More often, however, it concerns agreements within a single organization. These can only be formalized through a clear written agreement between the OR and management — and this is where issues can arise. What exactly has been agreed? And what happens if the parties interpret the agreement differently later on? A recent ruling by the Subdistrict Court in The Hague illustrates the practical implications.

According to Article 32(2) WOR, the Works Council (OR) and management can agree in writing that the OR receives additional powers beyond those provided by the WOR. This may include broader advisory or consent rights or additional working arrangements regarding the application of the WOR. Management must send a copy to the company committee, but this is not a requirement for the validity of the agreement.

Of particular interest for ORs are:

• Additional advisory or consent rights (Articles 25 and 27 WOR)
• Improved or broader information provision
• Extra facilities such as time, training, and support
• Clarification of terms from the WOR (e.g., what counts as ‘important’ in this organization)
• Agreements on primary employment conditions
• Working arrangements regarding collaboration between the OR and management

The expansion must be based on clear agreements between both parties. If doubt arises later, the court looks at what the parties could reasonably have understood from each other’s words and conduct. Careful documentation is therefore important.

A contract is not always necessary. Other documents can also serve as a written agreement, such as:

• Approved minutes of a consultation meeting
• A clear advisory or consent request that shows an additional power. Generally, once granted, it remains valid, even if the subject later turns out not to require statutory advice or consent.

In exceptional cases, even a verbal agreement can be considered a company agreement. However, this is difficult to prove, so written agreements are preferred.

• Extra advisory rights: Articles 25(6) and 26 WOR apply, including suspension periods and recourse to the Enterprise Chamber.
• Extra consent rights: Articles 27(5-6) and 7(4) WOR apply. The OR may invoke nullity. The employer may request substitute consent from the Subdistrict Court.
• Disputes over the existence of an agreement: Article 36 WOR provides a general dispute resolution procedure through the court.

The OR claimed it had an extra statutory consent right regarding the removal of the meal allowance based on a local regulation (“the Manual”). The court ruled that it was not established that the parties had agreed to this:

• The Manual was prepared in consultation with the former MR (now COR), not with the OR. The OR had no consent right. The drafter was not authorized to make such agreements with the OR.
• An email from 2013 in which the OR “agreed with publication” did not constitute consultation with the correct body and did not imply a consent right.
• The fact that the employer failed to respond twice to the OR invoking nullity did not create a consent right. Later discussions to reach agreement also did not constitute recognition.

The OR had to prove that an additional consent right had actually been agreed upon, but it failed to do so.

For ORs, this ruling demonstrates that additional powers are not easily assumed. The court strictly examines what parties have concretely agreed. Implicit or vague agreements are insufficient. Anyone seeking extra rights must ensure they are unambiguously documented.

If the OR and management want to establish additional powers or clear collaboration arrangements, it is wise to record these in writing and with precision. This prevents misunderstandings and strengthens the OR’s position if disputes arise later. Need help drafting or reviewing such agreements? We are happy to assist.

For questions, contact:

Jan-Pieter Vos, Employment & Works Council Attorney at law
Barbara van Dam-Keuken, Paralegal, Employment & Works Council

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