What can you use this guide for?
This handout has two purposes. The first is to provide an overview of the steps that are taken in a formal dispute. The second is to give an indication of how disputes are won and lost. If you find yourself in a formal dispute, this handout is not enough to help you win. Co-determination bodies are entitled to legal support (WHW art. 9.48 paragraph 3; WHW art. 10.39 paragraph 3; WOR art. 17 paragraph 1). We strongly suggest that you make use of that. Finally, you should know that not all parts of this guide will be equally relevant to everyone. Many co-determination councils and committees will have little or no encounters with formal disputes. Moreover, not all procedures are relevant to all forms of co-determination. So, focus on what is relevant to you, when it is relevant.
What are formal disputes?
If there is an issue that you cannot resolve (in time) with your executive, you may want to see if it is possible to legally enforce your rights. Formally, this is done through a dispute procedure. Formal disputes are sometimes seen as the ultimate form of conflict between co-determination and an executive. But that is not entirely justified. In addition to a serious conflict, there are other good reasons to go to the disputes committee. If the co-determination and the executive do not agree on the rights and duties of co-determination, it may be more practical to go through the steps of the dispute than to have endless discussions about it. In addition, you are sometimes bound by deadlines. In order to safeguard the rights of the co-determination (and thus your constituency), you must then take legal action.
The Higher Education and Scientific Research Act (hereinafter referred to as WHW) and the Workers Councils Act (hereinafter referred to as WOR) contain rules to ensure that co-determination bodies’ rights are respected. Conversely, there are also rules to ensure that the co-determination bodies do not abuse their position. This is why executives can also start a dispute. Every Dutch higher education institution is obligated to make agreements with the co-determination council about the dispute procedure and what it can be used for (WHW art. 9.34 paragraph 3 sub l; WHW art. 10.22 sub l). Make sure you are aware of the rules at your institution.
In addition to the agreements made at institutions themselves, the rules regarding formal disputes also depend on the co-determination structure at your institution. This is because different rules apply to worker’s councils (NL: Ondernemingsraden) than to program committees, student councils or councils that include both students and employees. The guide below first explains which rules apply to the latter group. Then the rules for workers’ councils are explained.
In short: How should formal disputes work for program committees, student councils and undivided councils?
Step 1: the dispute committee
In the simplest terms, a dispute is a difference of opinion about the interpretation of the law and local regulations between the co-determination body and the executive. In practice, this means that a co-determination body can initiate dispute proceedings if it believes an executive is acting in an unlawful manner. You can do that here. Conversely, executives can also initiate a dispute, for example, if, in their opinion, the co-determination body has refused to agree to something without sufficient reason (WHW art. 9.40 paragraph 5; WHW art. 10.26 paragraph 2). When there is a dispute, the CvB first investigates whether a settlement is possible. If the co-determination has a dispute with the CvB, then the Supervisory Board (RvT) seeks a settlement. If that fails, then the dispute is submitted to the Disputes Committee (WHW art. 9.40 paragraph 2; WHW art. 10.26 paragraph 2).
Depending on what the rules are at your educational institution, the disputes committee may make another attempt to mediate the dispute (WHW art. 9.34 paragraph 3 sub l; WHW art. 10.22 sub l). If they don’t or if it is unsuccessful, the dispute committee will ultimately issue a judgment. If the co-determination starts the dispute, then the dispute committee tests three factors (WHW art. 9.40 paragraph 4).
• Did the CvB or the dean comply with the law and the regulations?
• After considering the interests of those involved, was it possible for the CvB or the dean to make their decision in a reasonable manner?
• Did the CvB or the dean act with due care in relation to the relevant codetermination body?
If executive initiates a dispute, they likely do so to obtain permission to override a decision of the co-determination body not to consent to something (see the handbook on the most important rights of the co-determination body for an explanation of the right to consent). The disputes committee may only give such permission if not giving consent by the co-determination body was unreasonable, or if serious economic, organizational or social reasons make the decision necessary (WHW art. 9.40 paragraph 5; WHW art. 10.26 paragraph 1). If the Disputes Committee decides to grant such permission, the executive no longer needs the consent of the co-determination body to make the decision which is the subject of the dispute.
Step 2: The Enterprise Chamber (NL: Ondernemingskamer)
After the disputes committee has made a decision then both the executives and the co-determination body may choose appeal to the Enterprise Chamber (NL: Ondernemingskamer) of the Amsterdam Court of Appeal (WHW art. 9.46 paragraph 1; WHW art. 10.26 paragraph 1). This must be done within one month after the disputes committee has rendered a decision (WHW art. 9.46 paragraph 3; WHW art. 10.26 paragraph 1). The appeal may only be based on an incorrect application of the law by the disputes committee (WHW art. 9.46 paragraph 4; WHW art. 10.26 paragraph 1). The decision of the Enterprise Chamber (NL: Ondernemingskamer) cannot be appealed (WHW art. 9.46 paragraph 5; WHW art. 10.26 paragraph 1).
In short: How it should work for workers councils (NL: Ondernemingsraden)
Unlike undivided boards or program committees, workers councils generally do not have to go through the disputes committee before going to court. This is because the rights of workers councils are based in part on the WOR and not just the WHW. There are strong advantages to this for workers councils. Because more cases are conducted on the WOR, there is much more case law. In practice, this means that there is more legal basis for workers councils than for other forms of co-determination. In addition, this ensures that conflicts are decided more quickly. The disadvantage is that you will visit the dispute committee less often and have limited time available before entering into legal proceedings.
Generally speaking, the workers council can ask the kantonrechter (a kind of judge) to force executives to comply with the rules in the WOR (art. 36 paragraph 2). This does not mean that this is always the best way to protect your rights. Nor does it mean that you will always get your way. The most effective route for legal disputes for workers councils depends on the rights you have on that particular topic. Workers councils have too many rights to explain the procedure for each right in this paper. We will therefore limit ourselves to explaining the options for topics that involve the right to advise or consent. For other topics or specific cases, the Co-determination is always eager to assist. For all topics, it is wise to engage a lawyer if you suspect that the WOR (or the WHW) is not being followed. As a workers council, you are entitled to legal support from an (external) lawyer. It is not necessary to discuss this with your institution, although it is useful to inform your executive when you engage the services of the lawyer.
Right of advice
If an executive does not do enough to comply with the right of advice, the workers council can take the matter to the Enterprise Chamber (NL: Ondernemingskamer) in Amsterdam. This can be done in three cases. In the first case, the executive has not requested advice (early enough) on an important decision (WOR art. 25 paragraph 2). In the second case, the executive has not followed the advice of the workers council (WOR art. 26 paragraph 1). In the third case, new facts have come to light that would have caused the advice given to be different. The appeal can only be filed if the decision could not have been made reasonably (WOR art. 26 paragraph 4).
You must file this appeal with the Enterprise Chamber (NL: Ondernemingskamer) within one month. During that period, the decision may not yet be implemented. This is important because even if you are right, a revoked decision is not allowed to cause others to suffer. For example, if contracts have already been signed, they remain valid (WOR art. 26 paragraph 5) even though the Enterprise Chamber can undo the rest of the executive’s decision. For the appeal, only objections that were in the original advice may be raised (WOR art. 26 paragraph 9). So, make sure your opinions are well constructed.
The Enterprise Chamber reviews the decision based on four principles:
• Principle of care: Has the executive followed the correct procedures?
• Principle of justification: Is the executive’s decision logical and understandable?
• Principle of trust: Can the workers council trust the commitments made?
• Principle of proportionality: Do the interests of the staff outweigh the interests of the institution?
Finally, if the Enterprise Chamber has ruled, it is still possible to appeal this ruling to the High Court (NL: Hoge Raad) (WOR art. 26 paragraph 9). It is then no longer possible to present new arguments. It is only assessed whether the Enterprise Chamber has made a reasonable decision.
Right of consent
The right to consent can lead to a legal dispute in two ways. The first way is for an executive to illegally go ahead with the decision for which the workers council has refused their consent. If this happens, the Workers Council must go to the kantonrechter within a month of discovering it in order to “invoke the nullity of the decision” (WOR art. 27 paragraph 5).
The second way in which the right to consent can lead to legal proceedings is if an executive wants to legally implement a decision for which consent has been refused. The executive can then go to the kantonrechter to request permission to implement the decision (WOR art. 27 paragraph 4). The kantonrechter will only grant such permission if the refusal to consent was unreasonable or if there are serious organizational, economic or social reasons for doing so.
Appendix: what can you go to the disputes committee for?
Every Dutch university or university of applied science must have regulations describing the subjects about which a dispute can be submitted to the disputes committee (WHW art. 9.34 paragraph 3 sub l; WHW art. 10.22 sub l). In addition, you can always file a dispute for the following list of subjects (WHW art. 9.40 paragraph 1; WHW art. 10.26 paragraph 2):
• The establishment, amendment or application of the co-determination regulations (Article 9.34 WHW).
• Everything concerning the legal rights and duties of program committees, as described in section 9.18 WHW. This includes, for example, whether or not to agree to the education and examination regulations (OER), unsolicited advice or the way in which the program committee is composed.
• Anything about which the joint meeting (the Central Student Council and the Central Workers Council together) has the right of consent (article 9.30a WHW). This includes, for example, the outlines of the budget, the institution’s plan or the administrative and management regulations.
• The general powers and duties of the central co-determination council (article 9.32 WHW).
• Everything for which the central co-determination has the right of consent (article 9.33 WHW).
• A number of matters for which the central co-determination council has the right of advice. This concerns, for instance, the size of and the policy regarding the institutional tuition fees or the proposed profiles of new members for the Executive Board or the Supervisory Board (article 9.33a paragraph 1 sub b, paragraph 2 sub b and paragraph 3 sub b WHW).
• The regulations for the central co-determination council (article 9.34 WHW).
• The right of advice, arising from article 9.35 WHW.
• Disputes about the powers mentioned in section 9.36 WHW. This concerns the right of consent of the central co-determination concerning the special legal status of the staff.
• Disputes about the right of consent of the decentralized councils (this concerns, for example, faculty councils, sub-councils or academy councils. The name of this type of council differs per educational institution) if the dean makes a decision about the faculty regulations or the education and examination regulations (section 9.38 WHW).