How to write an employee participation (works council) advice: a practical guide

A well-substantiated Employee Participation (works council) advice is crucial for advocating the interests of employees.

A good works council advice:

• Forces the entrepreneur to make better decisions
• Provides a strong legal basis for any objections
• Often leads to adjustments in decisions
• In this practical guide, you will learn how to create a convincing works council advice with real impact in five clear steps.

Start your advice with a clear description of the process followed. This shows that your advice is carefully considered and strengthens your position.

Important elements to mention:

• The reason for the advisory request
• Documentation received and reviewed
• Discussions held with the entrepreneur and others
• Your experience as works council during the process: was the collaboration constructive? Was information received promptly?
• Communication about the planning of the advisory process (in broad terms).

By being transparent about the preliminary process, you create a solid foundation for your substantive arguments. It also clarifies the information the works council has based its advice on. This protects your position if new information later emerges that would have led to a different advice.

A concise summary of the decision prevents misunderstandings and differences in interpretation. This is not mandatory, but it can help in communication, for example, to the constituency.

Practical approach:

• Provide a clear summary without repeating the entire advisory request
• Describe how the works council interpreted the decision
• Mention the main considerations of the entrepreneur

Example:

"The entrepreneur plans to reorganize department X by July 1, 2025, due to declining revenues, necessary cost savings, and more efficient work processes. This reorganization affects 25 employees, with 10 becoming redundant. Redeployment opportunities are limited. The social plan includes the following measures for employees: [...]"

By clearly formulating the decision, you can refer to it in your arguments. Also include the main justification of the entrepreneur, especially those points you want to respond to later in your advice.

In this step, you clearly formulate your position as works council, which you then substantiate with good arguments. The persuasiveness of your works council advice depends on this substantiation. The more specific your arguments, the stronger your position. Based on your arguments, you can come to conditions and/or recommendations.

Structure

A good structure for your substantiation is:

• General comments (about background and motives)
• Specific comments (on specific parts)
• Consequences of the proposed decision (e.g., financial, organizational, personnel)
• Measures to be taken (response to social paragraph, redeployment plan, etc.)
• Interim conclusion
• Conditions and recommendations (see step 4)
• Advice (see step 5)

Examples of points of attention for your substantiation:

1. General

• Is it clear what the problem is? Is this based on a solid analysis?
• Does the decision solve the problem? What evidence supports this?

2. Financial impact

• Does the cost saving outweigh the disadvantages?
• Have cheaper alternatives been investigated?

3. Possible alternatives

• What other solutions are there with less impact on employees?

4. Risks and uncertainties

• What consequences may not have been sufficiently mapped out?
• What are the long-term effects of the decision?

5. Consequences for employees

• Impact on employment, workload, and job content
• Effects on job satisfaction and employee satisfaction

6. Company culture and work atmosphere

• Influence on collaboration and motivation
• Possible effects on staff turnover

Practical tip: Substantiate your arguments with factual data such as internal research, benchmarks, and concrete figures. Include all arguments. An entrepreneur will then have to substantiate a deviating decision well. Recent case law makes it clear that entrepreneurs must concretely demonstrate how they have weighed all relevant interests. Use this to your advantage.

A strategic works council advice often contains concrete conditions and recommendations. This increases your influence and limits possible negative effects. Formulate them SMART.

Conditions versus recommendations:

• Conditions: hard requirements that the entrepreneur must accept or better justify why not
• Recommendations: constructive suggestions for improvement

Examples of SMART conditions:

• No forced layoffs due to economic reasons within 12 months after the implementation of the reorganization.
• The current employment conditions of the staff, including all secondary conditions, remain unchanged after the merger until at least January 1, 2027, or may not be worsened.
• Within six weeks after decision-making, an independent investigation into workload will be started, conducted by an independent expert. The results will be reported within three months after the start of the investigation.
• Before May 1, 2025, a social plan will be drawn up in which a training budget of €3,000 excluding VAT per person is established for each redundant employee.

What if the entrepreneur rejects conditions? If the entrepreneur rejects your conditions, you still have a month to decide what steps you want to take. The entrepreneur may not take any implementation actions.

Your final advice must be clear. There are different forms of advice, for example:

• Positive advice - You agree with the proposed decision.
• Negative advice - You reject the decision.
• Positive advice with conditions (Yes, provided) - You agree under specific conditions.
• Negative advice, unless... - You advise not to take the decision unless certain conditions are met.
• Advice without value judgment - You give substantive advice without explicitly saying yes or no.

There is no general rule about which form is best when. The choice depends on the specific circumstances, the relationships with the entrepreneur and the constituency, and your strategic goals as works council.

Important points of attention:

• Formulate your position clearly and concretely
• Avoid vague formulations such as "We advise caution"
• Explicitly ask for a written response from the entrepreneur
• For conditions and/or recommendations: ask for a written confirmation that the entrepreneur will follow the conditions and/or recommendations.
• Point out to the entrepreneur the legal suspension period of one month in case of a deviating decision. During that period, the entrepreneur may not take any implementation actions.

An effective works council advice follows a clear structure and is strategically built:

• Start with a clear description of the process
• Summarize the proposed decision concisely
• Substantiate your position with concrete arguments
• Formulate clear conditions and recommendations
• Conclude with a clear advice

By carefully following these steps, you create a works council advice that has influence and is taken seriously. And if the entrepreneur ignores your advice, a well-substantiated advice provides a solid basis for legal steps.

Do you need help drafting a works council advice? Our WOR team is here to assist you!

We offer services such as:

• Guidance during advisory processes
• Support in writing your OR advice
• Review of your draft advice with concrete improvement points
• Legal check on the feasibility of your conditions
• Advice for maximum influence, both legally and strategically

If you have any questions, feel free to call or email Jan-Pieter Vos, j.vos@declercq.com, +31641595504.

Would you like to receive a monthly overview of updates and blogs in your inbox? Click here to subscribe to the newsletter!