Carelessness Does Not Constitute Grounds for a Right to Be Consulted

DISA was established as a temporary operational unit within the Dutch Ministry of Justice and Security, tasked with identifying, registering and screening asylum seekers during the period from 1 January 2025 until the entry into force of the European Pact on Migration and Asylum on 12 June 2026. From that date onwards, the Immigration and Naturalisation Service (IND) would assume permanent responsibility for these tasks.

From the outset, it was clear that this transition could only take place if the requirements relating to employee representation, proper administration and good employment practices were met. These requirements were set out in DISA’s founding memorandum. To ensure appropriate employee representation, a Temporary Works Council (TOR) was established at DISA.

Months before the actual transition, the TOR was already uncertain about the future of DISA’s employees. Would the IND take over only the tasks, or would it also take on the personnel? Following consultations with the executive, two scenarios were ultimately outlined in October 2025:

• Where the roles remained essentially unchanged, DISA employees would transfer to the IND; and
• Where there were substantial differences in the content of the roles, an advisory process with the TOR would first have to be completed before the tasks were transferred from DISA to the IND.

Ultimately, a job comparison study conducted by O&P Rijk concluded that the DISA roles were not, or not fully, comparable to the new roles at the IND. In effect, this meant that the second scenario applied.

On 6 March 2026, without first giving the TOR an opportunity to advise on the matter, a decision was taken that the reorganisations at DISA and the IND would proceed as separate processes, with no joint reorganisation scope; that the winding down of DISA would be separate from the establishment of the new OVA department at the IND; and that DISA employees would not transfer to the IND.

The TOR brought proceedings before the Enterprise Chamber, seeking, among other things, a declaratory judgment that DISA could not reasonably have reached this decision, the withdrawal of the decision, and an order requiring DISA to seek the TOR’s advice on the reorganisation as a whole.

The Enterprise Chamber first assessed the decision under Article 46d(b) of the Dutch Works Councils Act (Wet op de ondernemingsraden, or WOR).

This provision states that the determination, under public law, of the tasks of government bodies, as well as the policies governing those tasks and their implementation, does not constitute a “matter concerning the undertaking” within the meaning of Article 23(2) WOR, except insofar as the matter concerns its consequences for employees’ work.

According to established case law of the Dutch Supreme Court, decisions falling within this category are excluded from the right to consultation, the right to be consulted under Article 25 WOR and the right to appeal under Article 26 WOR. This is because the legislature intends to keep political decisions made by democratically accountable bodies outside the scope of employee participation.

The Enterprise Chamber classified the decision of 6 March 2026 as precisely such a decision. It concerned the determination, under public law, of the tasks assigned to DISA and the IND, as well as the policy governing the performance of those tasks.

The fact that the decision to pursue separate reorganisation processes inevitably affected DISA employees did not alter this conclusion. Those consequences for employees were inherent in the policy choice made, but the decision was not specifically intended to regulate those consequences.

Accordingly, the decision was not subject to an advisory obligation, the TOR had no right of appeal under Article 26 WOR, and there was no basis for granting the interim or other relief sought. The TOR’s application was dismissed.

Despite dismissing the application, the Enterprise Chamber was notably critical of the executive. It characterised both the decision-making process and the communication with the TOR as “highly careless”.

The Enterprise Chamber found that the TOR had been “sent from pillar to post” in a matter of crucial importance to the employees, and that, despite repeated requests, no clarity had ever been provided regarding the precise scope of the TOR’s employee participation rights.

The Enterprise Chamber considered this particularly serious given that it had been known from the outset that DISA was a temporary service whose tasks would ultimately be taken over by the IND. Nevertheless, in view of the principle of political primacy, these procedural shortcomings could not lead to a different outcome.

This ruling illustrates the implications of political primacy for employee representative bodies within public-law organisations responsible for specific government functions. Where a decision can be traced to the allocation of public-law responsibilities between government services, there is little or no scope for a right to be consulted, regardless of how far-reaching the consequences for employees may be or how carelessly the process leading to the decision has been handled.

The question is whether the same procedural shortcomings would have led to a different outcome in a non-public-law organisation, where the principle of political primacy does not apply.

Outside the scope of Article 46d WOR, a process in which a works council is repeatedly “sent from pillar to post” and receives no clarity about its employee participation rights would normally carry the risk that the Enterprise Chamber might find a reorganisation decision manifestly unreasonable because timely and adequate consultation had not taken place.

By stating that the procedural shortcomings “cannot lead to a different decision” because of the principle of political primacy, the Enterprise Chamber appears to leave open the possibility that the outcome might have been different in an organisation where that principle did not apply.

If you have any questions, please contact Eveline Bakker, attorney at law specialized in Employment law.

This blog was written for HERO magazine. 

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