Adversely Affecting Works Council Members

Adversely Affecting Is Prohibited

Section 21 of the Dutch Works Councils Act (Wet op de Ondernemingsraden, "WOR") provides that the employer shall ensure that members or candidate members of the Works Council and its committees will not be adversely affected in their position in the undertaking as a result of their membership of the Works Council. The adverse affection that Section 21 of the WOR aims to fight may take various shapes, for example passing someone over for a promotion, giving someone a bad appraisal in connection with his absence due to work for the Works Council, etc. If the employer fails to comply with this statutory provision, the Works Council may bring a claim for compliance with the ban on adversely affecting. The first thing to do is to apply to the Trade Commission for mediation and advice, and if this does not lead to a solution, the claim may be brought before the court. The court may then order the employer to stop adversely affecting the employee, but may also order the employer to pay compensation. This section of the law rarely leads to litigation.

Reprimands

Recently, a judgment was rendered in a case in which two members of a Works Council, who were also civil servants, were reprimanded. This is a disciplinary punishment in civil servants law. The employees objected to the reprimand, and put forward that they had been adversely affected for being members of the Works Council. However, the employer dismissed the objection as unfounded. The employer stated that there was no question of adversely affecting as envisaged in Section 21 of the WOR. The employees did not appeal against these decisions. Next, the Works Council applied to the Trade Commission requesting its mediation and advice. In its advice, the Trade Commission suggested to the Minister to reconsider the punishments, because in its opinion the civil servants had been adversely affected indeed. The branch manager answered that he would not comply with the advice of the Trade Commission.

Ruling Subdistrict Court and Central Appeals Tribunal

One of the Works Council members then took the case to the Subdistrict Court. The Subdistrict Court rejected the employee's claim on procedural grounds; because he is a civil servant, the Works Council member should not have applied to the Subdistrict Court, but to the administrative tribunal. The Works Council Member then brought proceedings before the Central Appeals Tribunal ("CRvB") after all. The CRvB did not answer the question as to whether or not he had been adversely affected, because the Works Council member had failed to appeal against the decision to punish him at the time; as a result, this decision had already become irrevocable.

Tips

• It is important for employers to avoid any adverse affecting or the appearance thereof. You should make clear arrangements about this and provide reasons for labour-law decisions, if possible in writing.
• There is a difference between a civil servant and an ordinary employee, not only in employment law, but also in terms of employee co-governance. Since 1994 the ‘Regulation of co-governance of government staff in the WOR’ applies, which sets out deviating rules for civil servants in several respects. In this case such a deviation existed. The employee could not successfully challenge his reprimand because he was probably not aware of this deviation.
• The legislator has been planning to amend the WOR for some time now. Although it was planned to have this law amendment enter into force on 1 January 2013, this has turned out not to be feasible. One of the planned amendments is to abolish the mandatory mediation by the Trade Commission. As soon as there is more clarity about the entry into force of the law amendment, we will let you know