What can the Works Council do with Artificial Intelligence?

What do we mean by AI?

Artificial intelligence (AI) refers to technology that recognizes patterns in data and makes decisions based on them. This is achieved through algorithms that can adapt and improve themselves. Companies use AI in various ways: for example, chatbots handling frequently asked questions in customer service, software optimizing inventory management in logistics, or image recognition systems for quality control in production. Other well-known applications include text-generating tools like ChatGPT or CoPilot for drafting emails, reports, or meeting minutes. AI can accelerate and automate processes but also raises questions about costs, dependency, privacy, and proper implementation within an organization.

AI and the Works Council: save time, but beware of confidentiality

What can the works council do with AI? First, AI can be a valuable tool for daily WC activities. Need to find new candidates for the upcoming WC elections or inform staff via a newsletter? AI can quickly generate a compelling draft, and translation into another language is effortless. This can save significant time.

AI can also be useful in handling advisory requests and requests for consent, benefiting both management and the WC. AI can assist in drafting an advisory request or analyzing one to identify key points. Additionally, when the WC receives documents based on its right to information, AI can help process and interpret the content.

However, caution is required: under Article 20 of the Dutch Works Councils Act (WOR), the WC is bound by confidentiality. This applies not only to explicitly designated confidential information but also to trade secrets and any data that the WC understands, or should understand, to be confidential. Employers and WCs should establish clear agreements on AI use concerning confidentiality. Uploading trade secrets or sensitive personal data into an AI tool without knowing how the information is processed must be strictly avoided.

Advisory and Consent Rights on AI Implementation

Does the WC have a say in AI implementation within the organization? In many cases, yes. Here are some examples:

• Significant Technological Provisions: The introduction or modification of a "significant technological provision" requires the WCs advice. “Significant” means it must be an exceptional decision. For instance: if a company decides to automate certain tasks with AI instead of performing them manually, the WC may have advisory rights.
• Major Organizational Changes: The above may also lead to an organizational change that requires advice. If employees are laid off due to automation and/or new roles emerge because of automation, this could qualify as a significant organizational change.
• Engagement of External Experts: A commonly overlooked advisory right involves hiring an external expert for topics requiring WC advice under the WOR. The WC must first be consulted on the engagement and selection of the expert. It may be relevant to check whether the expert uses AI, for example, in providing advice on a reorganization.
• Employee Monitoring: If the organization wants to deploy an AI tool to monitor employee behavior, attendance, or performance, this requires WC consent. Even if monitoring is not the intended purpose, the mere possibility is sufficient to trigger the consent requirement. The protection of employee personal data may be a key concern for the WC in such cases.
• Employee Training: Training policies also fall under WC consent rights. The AI Act includes rules requiring organizations working with AI to ensure their employees are “AI-literate.” If the organization introduces a new training policy to meet these requirements, it may require WC approval.

In short, AI impacts various areas where the WC can influence decision-making. And if the WC feels things are not progressing fast enough? It can take the initiative itself by making proposals under its right of initiative.

Want to know more about the role of the Works Council in organisations?

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