Part 5 of ‘Everything About the Works Council’: The Right to Information

In our blog series on the Dutch Works Councils Act (WOR), 'Everything About the Works Council,' we explore all the ins and outs of this legislation. Every two weeks, we publish a blog highlighting an interesting topic. This week: the works council’s right to information. You can find our previous blogs here.

The Right to Information

The two most important and well-known rights of the works council—the right to advice and the right to consent—were covered in our previous blogs. However, the works council has more statutory rights. This week, we focus on the right to information.

‘All Information and Data’

The WOR dedicates a separate chapter to the provision of information to the works council. It starts with a key provision: the employer is obligated to provide ‘all information and data’ that the works council deems necessary for fulfilling its duties.

The works council can request (additional) information, and the employer cannot easily refuse by claiming the council does not need it for its duties, such as advising on a proposed decision. Case law has established that it is the works council, not the employer, that determines what information is necessary.

The exact scope of information the works council can request depends on the circumstances. Generally, the council cannot ask for information that is clearly unrelated to its tasks, or that serves no useful purpose. If the information concerns trade secrets, competition-sensitive data, or special kinds of personal data, both the employer and the works council must handle it carefully. However, this does not mean the works council never has the right to access such information. The WOR allows for explicit confidentiality requirements to be imposed on works council members regarding certain documents or subjects.

Mandatory Information

Beyond the right to request necessary information, the employer is also required to periodically share specific information with the works council. The following topics, as stipulated in Articles 31 to 31f of the WOR, must be provided:

• Information about the company and its corporate structure;
• Financial data, including the annual financial statements;
• General information about employee groups and social policies;
• Details on the level and structure of employment conditions per employee group (if the company regularly employs at least 100 employees).

Additionally, Article 24 of the WOR stipulates that the works council must be informed in a timely manner about planned decisions under preparation. This ensures the works council is not unexpectedly confronted with a new request for advice or consent. This is a crucial step in any advisory or consent process.

Privacy Considerations

In all cases, the employer must comply with the General Data Protection Regulation (GDPR) and other privacy laws. Personal data that can be traced back to individuals, such as salaries and other employment conditions, cannot be shared. The WOR also takes this into account, specifying, for example, that information about employment conditions must be provided only for groups of at least five employees.

Impact on the Advisory or Consent Process

The right to information may seem straightforward, but it is of great significance. Employers often lose legal proceedings over decisions due to insufficient information sharing with the works council. If the works council lacks adequate information, it cannot provide a well-founded opinion or consent.

One well-known case is the Uniface ruling. The works council was asked for advice regarding the sale of the company. The works council repeatedly requested additional information and clarifications, given the complexity of the decision. However, the requested information was not provided, was incomplete, or arrived too late. Consequently, the works council issued a negative opinion, partly due to the inadequate information provided. The Enterprise Chamber agreed, explicitly stating that the employer should have properly documented the request for advice, provided prior information, and substantively responded to questions.

Another example is a reorganization at Media Groep Limburg. The employer argued that the necessity for reorganization was evident from the financial documents shared under Article 31a of the WOR. However, the Enterprise Chamber ruled that this information was insufficient. The works council needed a clear rationale for the necessity of the reorganization and potential alternative cost-saving measures. The link between the financial figures and the need for layoffs was missing in the request for advice. As a result, the Enterprise Chamber determined that Media Groep Limburg could not proceed with its proposed decision.

Conclusion

Employers must carefully consider what information is essential when submitting a request for advice or consent and provide it proactively. A well-substantiated request facilitates a smoother process. If the works council requests additional information, the employer should generally not withhold it, as doing so risks legal challenges that could invalidate the decision.

Do you have questions about this topic or other works council-related matters? We are happy to advise you. Our Employment Law team has extensive experience assisting both works councils and employers. Whether you need quick practical advice or support for major works council processes, such as reorganizations or business acquisitions, we are here to help. We consider not only the law and the latest case law but also strategy and cooperation between the works council and management. We also have significant experience with legal disputes between employers and works councils. Want to know more? Get in touch with our Employment Team!