When does the WC have the right to give its advice?

Article 25 of the WCA contains a (limitative) list of subjects for which the WC must be requested for its advice if the entrepreneur intends to make a decision in relation thereto. The decision must be concrete and detailed, but not yet final. In other words, the WC must be requested for its advice at such moment that the advice can still be of a meaningful influence on the decision that will be taken. For this reason, the WC has the right to give its advice on (important) envisaged decisions.

Requirements of the request for advice

If the advice of the WC is required for an envisaged decision, one of the key requirements is that the WC must be involved in the decision-making process in a timely manner. Specifically, the WC must be consulted at a point where its advice can still have a meaningful influence on the (envisaged) decision. This is also explicitly stated in Article 25(2) of the WCA. Pursuant to Article 24 of the WCA, the entrepreneur is required to discuss the overall business operations with the WC in a consultation meeting at least twice a year. In this context, the entrepreneur is obligated to inform the WC about decisions that are being prepared in relation to the subjects outlined in Article 25 WCA (regarding decisions that require the WC’s advice) and Article 27 WCA (regarding decisions requiring the WC’s consent).

This requires a balanced approach, because on the one hand, the request for advice must be initiated as early as possible so the WC can actively participate in considering alternatives and potential consequences. Additionally, and as mentioned, the advice must be requested at such time that the advice can still have a meaningful influence on the decision. On the other hand, the request for advice must be sufficiently concrete and substantiated, because if the envisaged decision is too vague, the WC is not able to provide its advice.

The request for advice must be submitted in writing, be well-substantiated, and include at least the following elements:

  1. The rationale for the decision – Why is the decision being made? Have alternatives been considered?
  2. The expected impact on employees – Will the decision affect employment conditions, job security, company strategy or otherwise affect the employees?
  3. Proposed measures – How will any negative consequences for employees be addressed?

After submitting the request for advice, at least one consultation meeting must take place between the entrepreneur and the WC. If, after the WC's advice, a decision (as referred to in Article 25(1) of the WCA) is made, the entrepreneur must inform the WC of the decision in writing as soon as possible. If the entrepreneur does not (fully) follow the WC's advice, the entrepreneur must provide a written explanation in which it is substantiated why the advice of the WC is not (fully) followed. In that case, the entrepreneur must in principle wait one month before the envisaged decision can be implemented, unless the WC waives this waiting period. During this one-month period, the WC has the right to appeal against the decision before the Enterprise Chamber. If the WC has not yet provided advice on the implementation of the decision, the entrepreneur must also seek the separate advice from the WC for this matter.

Appeal with the Enterprise Chamber – What can go wrong?

Article 26(1) of the WCA states that the WC may file an appeal against the decision of the entrepreneur during the one-month waiting period if:

  • the decision is not (fully) in accordance with the WC’s advice; or
  • new facts or circumstances have come to light that, if known earlier, could have influenced the WC’s advice.

Dutch case law clarifies that the WC may also appeal if the prior advice of the WC is required and no request for advice was submitted at all.

The Enterprise Chamber first makes the assessment whether the consultation process was properly conducted and whether all procedural rules of the WCA were correctly followed (e.g., whether the WC was involved in time, whether the request for advice was sufficiently substantiated, and whether the potential consequences were properly outlined). The Enterprise Chamber then assesses whether the entrepreneur could reasonably have come to its decision, considering all relevant interests. If the consultation process was properly followed, the Enterprise Chamber is unlikely to rule against the entrepreneur, as the principle of freedom to conduct business is generally upheld.

Depending on the outcome of these two assessments, the Enterprise Chamber can, if requested by the WC during the procedure, impose several measures. For example, the Enterprise Chamber can require the entrepreneur to fully or partially revoke the decision or order certain consequences of the decision to be reversed. Additionally, the Enterprise Chamber may prohibit the entrepreneur from carrying out or facilitating actions to implement the decision or parts thereof.

In practice, the Enterprise Chamber imposes such measures only in (more or less) exceptional cases. However, a recent ruling by the Enterprise Chamber once again demonstrates that these powers must be taken seriously. In the ruling - Dutch only, which we discuss below, the WC appealed against a decision made by the Royal Netherlands Academy of Arts and Sciences (KNAW).

Amsterdam Court of Appeal 14 November 2024

The case

KNAW made the decision to terminate the scientific research involving certain test animals (non-human primates). This decision had potentially significant consequences for the employees at the Biomedical Primate Research Centre (BPRC) and broader negative effects on scientific research conducted by the BPRC, which played a crucial role in the development of medicines and vaccines.

The WC argued that it should have been able to give its advice before the decision was made and that it was involved too late and insufficiently in the decision-making process. The WC argued that KNAW already made its decision public before the WC had the opportunity to provide its advice in relation to the decision. As a result, the WC believed that it had no meaningful influence over the decision and that the potential consequences for employees – such as reassignment or possible dismissals – were not adequately examined by the entrepreneur. Additionally, the WC found the decision to be insufficiently substantiated.

KNAW, however, argued that the decision was a matter of principle and did not require the prior advice of the WC, since it did not have a financial, economic, or organizational character. KNAW claimed that the decision therefore did not fall within the scope of Article 25 of the WCA and claimed that there was broad societal and ethical consensus that research involving non-human primates was undesirable, justifying the decision of KNAW to terminate such research.

The Ruling of the Enterprise Chamber

The discussion between the WC and KNAW results in the WC initiating proceedings before the Enterprise Chamber pursuant to Article 26 of the WCA.The Enterprise Chamber largely ruled in favor of the WC and ruled that KNAW had insufficiently substantiated its decision and had failed to weigh all relevant interests sufficiently. The Enterprise Chamber further ruled that KNAW should have considered not only ethical objections but also the interests of scientists, patients, and scientific progress. Additionally, no alternative solutions were explored by KNAW and the Enterprise Chamber further ruled that the WC had been involved too late. Since the decision had already been effectively made and communicated, the WC was no able to give and advice that could be of a meaningful influence. This was a violation of Article 25 of the WMCA, according to the Enterprise Chamber.

As a result, the Enterprise Chamber ruled that KNAW could not reasonably have come to its decision under the given circumstances. KNAW is required to revoke the decision and, if it wishes to still make the decision, to properly seek the prior advice from the WC before a new decision is taken. In the new decision-making process, the KNAW must carefully identify and weigh all relevant interests.

Conclusion

The right of the WC to give its advice is an essential tool for the WC to – among other things – protect employees’ interests in important business decisions of an entrepreneur. Entrepreneurs should recognize that the WC’s right to give its advice is not just a formality but a fundamental part of the decision-making process.

The recent ruling by the Enterprise Chamber (again) underscores this and demonstrates that an inadequate consultation process can lead to significant and undesirable consequences. It is therefore crucial to involve the WC in a timely and appropriate manner and in accordance with the WCA. Carefully weighing all legitimate interests and submitting a well-substantiated request for advice can help to prevent discussions as much as possible.

If you like to learn more or if you are currently dealing with matters that (could) require the WC’s prior advice and want to avoid discussions or if you require assistance, please feel free to contact us for advice. We are of course happy to assist.