Employee Representative Body

An employer that operates an enterprise employing 10 to 50 employees is obliged to establish an employee representative body (“ERB”) if the majority of the employees so requests. The law does not specify the way in which the ERB should be established in practice.

The ERB has a right to advise in respect of all projected decisions by the employer that may lead to loss of jobs or to an important change to the labor or employment conditions of at least one-fourth of the persons working in the enterprise. If the employer fails to comply with the advice, this is not a decision as such that the ERB can appeal against before the court. The ERB does have the option of going to the Subdistrict Court if the advice was not requested on time. This is what happened in the case described below.

The Facts

After a general staff meeting, the staff of the employer took steps to establish an ERB. A great number of employees responded positively to this initiative. Next, several staff members came together and various general e-mails were sent round the company on this topic. A few days before the official establishment of the ERB, the employer applied for dismissal permits for 18 of the 42 employees. The employer then invited the ERB to discuss the reorganization.

The ERB argued that the employer should have requested the ERB’s advice before applying for the dismissal permits. In preliminary relief proceedings the ERB claimed that the employer be ordered either to withdraw or not to use the dismissal permits. The employer argued that he did not have to ask for advice about applying for the dismissal permits because the ERB had not yet been established at that time.

Ruling of the Subdistrict Court

The Subdistrict Court held that it is not really imaginable that the employer did not know anything about the imminent establishment of the ERB, also in view of the director’s e-mail on this topic. In light of the ERB soon to be established, the employer could have been expected, before applying for the dismissal permits, to await the establishment of the ERB and to request advice about the reorganization. The ERB’s request was allowed. In addition, the Subdistrict Court pointed out that the employer was not free anyway to take the decision to terminate the employment agreements of the employees; under Section 35b (5) of the Dutch Works Councils Act, and in accordance with good employment practices, the employees should have been given the opportunity to offer their advice on this plan in advance.

Tips

  • Employers are advised to take signs of a potential establishment of a co-governance body seriously. It is expected of employers that they wait until such a body has been established, so as to let any decision-making take place with due observance of the employee co-governance rights.
  • Both employers and employees who work in an enterprise having more than 10 employees should be well aware of the possibility that co-governance rights do exist under circumstances, even though no specific employee co-governance body has been established.