Works council consent rights (instemmingsrecht) under the WOR
The Works Councils Act (Wet op de ondernemingsraden, WOR) grants the works council (ondernemingsraad, OR) a right of consent (instemmingsrecht) over a defined category of employer decisions. This means the employer may not implement certain decisions without the prior approval of the works council. The consent right is set out in Article 27 WOR and applies to decisions concerning the primary working conditions and internal HR policies of the company.
Article 27 WOR lists the subjects that require works council consent, including: pension schemes, working hours and rest periods, remuneration systems, job evaluation systems, rules on recruitment and selection, disciplinary procedures, complaints procedures, works regulations (arbeidsreglement), and data processing involving employees. This list is exhaustive - decisions not listed in Article 27 fall outside the consent right (though they may fall within the advisory right under Article 25 WOR).
Procedure for seeking works council consent under Dutch law
When an employer wishes to adopt, amend or withdraw a policy covered by Article 27 WOR, it must submit a written request (instemmingsverzoek) to the works council. The works council then has at least four weeks to consider the request and may seek further information or convene meetings. It can give consent, withhold consent, or give consent subject to conditions. If the works council withholds consent, the employer may apply to the subdistrict court (kantonrechter) for substituted approval.
If the employer implements the decision without seeking consent or despite refusal, and without court authorisation, the works council can request the court to declare the decision void (nietigverklaring) within one month. In practice, the nullification of employer decisions for lack of works council consent is a powerful enforcement mechanism. Employers are therefore well advised to involve the works council early in any policy change process.
Relationship to collective labour agreements under Dutch law
Where a subject is already fully regulated in the applicable collective labour agreement (CAO), the works council's consent right over that same subject is generally excluded. This avoids dual regulation. However, where the CAO leaves room for employer discretion, the consent right remains applicable. An employment lawyer can advise on the precise interplay between CAO provisions and works council rights in your specific situation. The WOR contains a demarcation rule: if a matter is exhaustively regulated by a collective agreement, the works council loses its competence to issue or withhold consent on that point (Article 27(3) WOR). In addition, Article 28 WOR places an affirmative obligation on the works council to promote compliance with applicable labour conditions, giving it an independent authority to investigate and report on observance of labour law and CAO provisions within the undertaking. Works councils are formally not empowered to conclude collective agreements, but in practice they play a growing role in supplementing and implementing framework provisions left open by sector-level CAOs.