Employee participation

The reason these parties come to us is not only because of our experience in co-determination law, but also because of our knowledge of labour law. After all, the issues submitted to works councils often touch on employment law. The fact that we remain a regular advisor to these parties is because we speak the same language, act quickly and offer solutions.

Personally, I get a lot of energy from the combination of co-determination and employment law. This is because of the substantive issues that come up, but especially because of the people involved. They are often people with a passion for the business. People who want to help the company move forward. Something that, incidentally, is not always appreciated as such by entrepreneurs.

Many entrepreneurs embrace co-determination. Others see it as a barrier. And then you have a large group for whom co-determination is simply something unknown. Something you know you actually have to do something with. The latter occurs in companies that are growing (rapidly), but also within international groups. At first glance, it also has something funny about it: you start a company and are free to set your own course. Things are going well, your company is growing and suddenly you have to submit certain decisions you want to take to your employees. That feels odd. But the way I am outlining this now is not the right way. Because it immediately portrays employee participation as something negative. And in our view, that is precisely what it is not.

Better decisions

Co-determination, simply put, is about letting individuals have a say in matters that affect them. And allowing several people to have their say - or rather to think along - is, in my view, in the best interests of the company. Because if employee participation is designed in the right way, it simply improves decision-making.

I often see plans being made by the director or management. They understandbly view the plan before them only through their own lenses. The board or management of a large organisation, also cannot possibly oversee everything that goes on within a company. Moreover, we often see that the board or management has been working within a company for far less time than the members of the works council have. And that, in my view, is where the important added value of co-determination lies.

Decisions get better because works council members see the decision or the consequences of the decision just a little differently. They understand better than anyone else how decisions will affect the workplace. In addition, works council members often have a different background than the director. As a result, they look at an issue from a different perspective. The difference in background may lie in education or (work) experience, but may also stem from generational differences, for instance. This is partly why it is valuable to have a proposed decision reviewed by the works council. It allows the director to learn about different views. We also see that while discussing a proposed decision, very different questions arise. Questions that the director had not initially thought of and that make him think.

All this leads to a decision growing stronger. And then when the decision is finally t its final form with the cooperation of the works council, what we have is a decision that has been looked at and that has been tested by various people. A decision with a strong foundation that is supported by the director, management and the works council. Such a decision will usually have a lot of support within the rest of the company.

Our value

In practice, participation does not always go well, unfortunately. One situation we still see often is that a works council becomes involved too late. The decision has actually already been taken and real participation is no longer possible. This makes the decision subject to attack immediately. A situation that is very unpleasant for the entrepreneur, but also for the works council. Indeed, in our experience, a bypassed works council often does not feel taken seriously. And that is understandable. After all, it touches on the very essence of employee participation: letting people have a say in matters that affect them. If you are not actually allowed to have a say, what are you doing on a works council at all?

To avoid that situation, the Works Councils Act contains many procedural rules. Regulations that were then further developed in case law. This concerns, for instance, the moment at which the works council must be involved (sometimes already when advisers are engaged), the amount of information a works council must receive, the time it must be given, but also wat makes a decision important enough to be submitted to the works council. Complex matters, precisely because the situation in practice is always slightly different. And we are happy to deal with that. Because of our experience and expertise, but also because we can translate the legal part into practice (and vice versa), we are able to clarify the complexities. We do this first of all by asking questions, listening carefully and asking further questions if necessary. We also compare the situation with our previous experience and similar issues in the case law. The trick is then to put our findings on paper in plain words while providing practical guidance on how to proceed. This is something we enjoy doing and it is also exactly what we are good at.

BASE advises entrepreneurs and works councils, both nationally and internationally. After all, employee participation also plays a role in international groups. And that is where very different issues come into play. We often see that within a group, many decisions are not taken locally, but by the (foreign) shareholder, for instance. These decisions may also fall within the scope of the local works council's right to advice or consent. Indeed, case law has developed methodologies in this context to ensure that even within international groups, employees can have a say in matters that concern them. Something on which there is often insufficient knowledge in groups, which might well have  consequences. After all, unfamiliarity often leads to decisions already being taken without the works council being involved, while it should have been. Something that compromises decision-making, can put relations on edge and can result in a lot of wasted time when everything has to be done all over again.

Familiarity with (the procedural rules of) co-determination is therefore important not only for protecting the works council, but also for protecting the interests of the company. We are happy to dedicate ourselves to that..

The big stick

The law offers the works council the option of going to court. That possibility exists in particular if the procedural rules have not been properly followed and there was (was) no room for full participation. Or in other words, if the works council has not been able to fulfil its role.

The possibility of going to court gives the works council a big stick during talks with the company. After all, legal proceedings (at the Enterprise Chamber or the subdistrict court) not only cost time and money, they can also cause a lot of delay in decision-making. When a dispute lurks, this is precisely what makes the director often sit down with the works council to find a solution. And often that solution is found, in our experience. But not always unfortunately. In that case, there is usually a fundamental difference of opinion on, for example, the scope of the works council's rights. Legal proceedings must then provide the solution. And that too is our business

By way of example, look at this case

In this situation, tensions often run high. The director often experiences it as an aggressive move by the works council, but also as a vote of no confidence. The works council often experiences it as something it is forced to do by the director with whom it cannot find common ground. It should be borne in mind that, in our experience, going to court is never taken lightly. It is a big step for a works council to take the company for whom its members work to court. After all, where the purpose of co-determination is to stand side by side, you then end up facing each other. And not just opposite each other, but opposite each other in a courtroom. It is in this situation that the professionalism of both sides is greatly called upon. A tricky situation, but if handled in the right way, always with an end result that parties can move forward with. And that, in the end, is always our goal.

Tools for good employee participation

If you say you love a practical approach, then you should show it. To conclude, then, I like to give some tools for practice. Indeed, in our experience, co-determination within a company often goes well if a few simple rules are followed.

Be on time

Only if the works council is involved in time it can have a full role and substantial influence. If the advice is requested when a decision has actually already been taken, the works council will not feel taken seriously and co-determination within the company will be wiped out. As a director, do you have doubts about when to submit the request for advice? If so, discuss this with your works council and, if necessary, make agreements about it.

Be open

Employee participation only makes sense if all information is on the table. On the one hand, this means that the entrepreneur must ensure that all relevant information is provided. But at the same time, the works council should indicate what it considers important. So that extra attention can be paid to that.

Be consistent

The works council must be able to rely on the information presented. Nothing kills employee participation more than saying A and doing B. So say what you do, but above all do what you say. Also, as an entrepreneur, don't waver in the motivation or rationale for a decision. And certainly don't take any executive actions while the advisory process is still ongoing.

Be clear in your advice

We often see thinking in positive or negative opinions within works councils. However, these are not legal terms. Ultimately, it is about a substantive advice from the works council to the entrepreneur. It is also important to be wary of using terms like "positive advice with conditions". After all, the intended decision will then be labelled positive. If the entrepreneur then proceeds to implement the proposed decision without taking into account the stipulated conditions, the works council will have to prove that it is a manifestly unreasonable decision.  It is therefore often better to give a "negative, unless" advice if the works council wants to attach certain conditions to the advice. In addition, the more substantiated the position of the works council is, the more the entrepreneur can be expected to give a well-reasoned response. After all, the entrepreneur must explain how he has taken the advice of the works council into account in his decision-making process. By providing good substantiation, the works council thus forces the entrepreneur to make a more substantive assessment.

Be clear in your decision

Sometimes it feels like an advisory process ends with the advice of the works council. But that is not the case. It ends with the decision taken by the entrepreneur. In this decision, as mentioned, the entrepreneur must properly show that and in what way he took the input of the works council into account. If the entrepreneur fully goes along with the advice, this can be done quite briefly. But if the decision deviates from the advice, it is important that the decision addresses the arguments and possible alternatives put forward by the works council. As an entrepreneur, this demonstrates that employee participation matters within the company. Although the works council may not be entirely happy with the decision taken, it does feel that it is taken seriously.

And with this last point, we are actually back to the starting point: at its core, co-determination is about allowing people to have a say in matters that affect them. Take this seriously and problems will be avoided. More importantly, it will lead to better decisions. Something we are happy to commit to.