Advice from the works council: how long can it take?

For many business owners, it is essential to make decisions quickly, particularly when it comes to major decisions such as a reorganisation, merger or takeover. However, the process can be delayed if the works council (OR) takes a long time to give its advice. This raises questions: how long is the works council allowed to take? And when can you, as an entrepreneur, proceed with your plans? In this article, you can read about the rules, what you need to bear in mind and how to avoid problems.

The works council’s right to advise explained

The works council has the right to give advice on important decisions made by the employer. This right to advise is laid down in the Works Councils Act (WOR). The aim is to enable employees, via the works council, to influence far-reaching decisions within the organisation. Examples include closing a branch, entering into a partnership or implementing a reorganisation.

For SMEs, scale-ups, private equity firms and family businesses, the consultation process is often a key part of the decision-making process. Failure to follow this process properly can lead to delays, uncertainty or even legal proceedings.

No fixed deadline, but a reasonable timeframe

The law does not specify a fixed timeframe within which the Works Council must issue its advice. However, the Works Council must provide its advice within a ‘reasonable timeframe’. What constitutes a reasonable timeframe depends on the situation. Factors that play a role here include:

● When the Works Council has received all necessary information;

● How complex the proposed decision is;

● Whether there is external pressure, for example in a bidding or tendering process.

It is advisable to make clear agreements with the Works Council regarding the timeframe within which advice is expected. This will prevent confusion and disputes later on.

Practical tip: record in writing when the Works Council has received all relevant information. This prevents disputes about the starting point of the advisory period.

Making agreements on the consultation period

As an employer, you can ask the Works Council to provide advice by a certain date. If the Works Council considers this timeframe too short, or if they require further information, they must indicate this in good time and request an extension. If the Works Council agrees to the proposed date, you may hold them to it.

It is important that both parties know in advance:

● By when the advice is expected at the latest;

● Why this timeframe is necessary;

● What the consequences are if the advice is late.

What if the Works Council does not give its advice on time?

If the Works Council does not respond within the agreed timeframe, this may have consequences. For instance, the Works Council may no longer be able to appeal against the decision because the advice was issued too late. As an employer, you may in principle proceed with implementing your decision if it was clear that the matter was urgent and the Works Council did not request an extension.

Please note: failing to issue an opinion is not the same as issuing a negative opinion. If the Works Council deliberately fails to give an opinion, you do not need to wait any longer to implement your decision.

Limits to the reasonable timeframe

The Works Council is responsible for requesting the information required for its advice in good time. If the Works Council fails to do so, it cannot later cite a lack of information as a reason for the delay. As an employer, you do not have to wait indefinitely. If you have given the Works Council sufficient opportunity to advise, but no response is received within a reasonable timeframe, you may proceed with your decision.

However, it is essential that it is clear to all parties:

● By when the advice must be issued;

● Why that deadline is necessary;

● What the consequences are of late advice.

Practical steps for employers

1. Make clear agreements with the Works Council regarding the timeframe for advice.

2. Record in writing when the Works Council has received all the necessary information.

3. Communicate clearly about the importance of the timeframe and the consequences of late advice.

4. Give the Works Council sufficient time, but be clear about the point at which you wish to proceed.

5. Document the entire process carefully, so that you can demonstrate that you have acted with due care.

Frequently Asked Questions (FAQ)

What is a reasonable timeframe for the Works Council to give its advice?

A reasonable timeframe depends on the situation. Factors such as the complexity of the decision and the point at which the Works Council has received all the information play a role. Make clear agreements on this.

As an employer, do I always have to wait for the Works Council’s advice?

You must give the Works Council a reasonable period of time to give its advice. If the Works Council does not respond in time and you have acted with due care, you may proceed with your decision.

What if the Works Council does not give its advice?

If the Works Council deliberately fails to give advice, you do not need to wait any longer to implement your decision. This applies only if you have given the Works Council sufficient opportunity to advise.

Can the Works Council claim that there is insufficient information?

The Works Council is responsible for requesting information in good time. If the Works Council fails to do so, it cannot later cite this as a reason for delay.

How can I avoid problems with the Works Council regarding the advisory period?

Make clear agreements in advance, set these out in writing and communicate clearly about the importance of the deadline and the consequences of late advice.

Questions

Do you have any questions about your cooperation with the Works Council? About the mutual agreements you can make with the Works Council? Please feel free to contact Myrddin van Westendorp.