Special power of the works council: the right of consent

What are consent rights?

Consent rights are set out in Section 27 of the Works Councils Act. This article states that the employer needs the works council's consent for certain proposed decisions. In principle, if the works council does not give its consent, the decision cannot be implemented. However, in this case the employer can try to get permission from the subdistrict court to implement the decision anyway. The purpose of the right of consent is to give the works council influence over decisions that directly affect the working conditions and position of employees.

The main consent rights of the works council

The works council has the right to consent to decisions of general scope in various areas, such as:

1. Working conditions and remuneration systems
   Certain decisions that affect employee remuneration or working conditions, such as a profit-sharing scheme, savings scheme and pension scheme, require the consent of the works council. However, the works council does not deal with primary employment conditions.
2. Working conditions and safety
   Decisions affecting working conditions and safety, such as introducing (new) safety measures, working hours, break rules and working conditions policy, also require the consent of the works council.
3. Staff appraisal and job evaluation
   Decisions concerning the way employees are assessed, such as new assessment systems or job evaluation methods, fall under the right of consent of the works council.
4. Working time regulations
   The works council has the right of consent for decisions on working and rest time arrangements and holiday arrangements. This includes matters such as shift work, overtime policy and flexible working hours.
5. Employee privacy and monitoring
   Decisions on processing and protecting employees' personal data are also covered by the works council's right of consent. Examples include cameras in the workplace, monitoring software and policies on e-mail use.

Procedure and consequences of lack of consent

When the works council has the right to consent, a decision cannot simply be unilaterally implemented. The procedure for taking a decision requiring consent is as follows:

1. Proposal: The entrepreneur makes a proposal to the works council and explains why the decision is desirable or necessary.
2. Consultation: The works council discusses the proposal and may ask questions to identify the consequences for employees.
3. Decision to (refuse) consent: The works council agrees to the proposal or refuses consent.

In case of a refusal, in practice, attempts are often made to still reach agreement through consultation and adjustments. If the works council does not consent and the entrepreneur nevertheless takes the decision without this consent, this decision is null and void if the works council invokes this nullity in writing. The works council must invoke this nullity within one month after the decision has been communicated to it or - if no communication has taken place - it has become apparent to it that the entrepreneur is implementing the decision. If consent is refused, the employer may also ask the subdistrict court to grant permission to take the decision after all. The subdistrict court will then assess whether the works council could reasonably have refused the consent.

Consent with conditions?

In practice, the works council may also attach certain conditions to the consent. If the employer meets the conditions set, consent is deemed to have been given. An entrepreneur argued in a 2023 case before the Amsterdam subdistrict court that consent subject to conditions was not possible because the WOR does not provide for it. However, the subdistrict court confirmed that this practice is indeed allowed. Although the WOR officially only has the choices of ‘consent’ or ‘no consent’, this does not mean that the works council may not set conditions. However, it must be clear that if the entrepreneur does not meet the condition, the works council will not give its consent.

To conclude

The right of consent of the works council is an important tool in safeguarding employee interests within organisations. The right of consent allows the works council to influence certain decisions that directly affect certain terms of employment, working conditions, working hours, privacy, and staff assessment, among others.

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