The co-determination bodies represent students and employees of educational institutions, but how exactly? And what rules of the game must the director abide by? The short answer is that this is largely determined by the Higher Education and Scientific Research Act (WHW). The co-determination body is equipped with a host of rights that allow them to enforce certain things from the board. Think, for example, of the right to consultation, which allows co-determination bodies to demand a consultation with the director.
In this guide, we take a closer look at six of the most important rights of employee participation (right of consent, right of advice, right of initiative, right of information, right of support and the enhanced right of initiative). We describe what they entail, why they are important, and what exercising them can look like in practice. Co-determination bodies have many other rights; a comprehensive list can be found here. A detailed explanation of how exercising these rights works can be found here.
The right of consent
In short, the right of consent means that a director must have the consent of the council or programme committee to make a decision. In this case, the director must therefore listen to the co-determination body. The WHW stipulates that co-determination councils have the right of consent for some dossiers (subjects that co-determination councils deal with, such as the institutional budget or education and examination regulations). There are also regulations at educational institutions themselves, which often contain additional agreements.
According to the law, the rights of co-determination bodies differ for each level of co-determination. For example, the decentralised co-determination bodies (faculty councils/academy councils) have the right of consent on parts of the education and examination regulations (OER). While the programme committees have the right of consent on the remaining parts. If the director wants to make a change to the OER, such as adding a new rule on compulsory attendance, they need the consent of at least one of the co-determination bodies to do so. If the participation council does not think that rule is a good idea, and therefore does not agree with the proposed decision, the change cannot be made. The new rule will then not appear in the OER. Indeed, if the codetermination wants a new resit option to be added, they can demand it. If the board does not agree to this, you can choose to withhold consent.
This is also known as the strongest right of co-determination. This is because it is binding, where the advisory and initiative rights are not. The director must comply with the wishes of the co-determination, or make a serious counter-offer. In practice, the right of consent often becomes a negotiation, so arguments for your position remain important! If you refuse to agree without substantiation, directors can ask the disputes committee for permission to make the decision anyway. Still, it is important to remember that you always have the right to withhold consent.
It sometimes happens that the right to consent is not (sufficiently) respected. We often hear, for instance, that directors ‘assume consent’ when the co-determination body ‘has been at the discussions’ (we discuss this specific example in the letter-writing guide). It is hugely important to be vigilant about situations like this. Point it out to your director if they are doing something wrong, and if necessary, file a dispute to secure your rights!
The right to advice
The right to advise is very similar to the right to consent. The advisory right applies over certain files. As with the right of consent, this is determined by law and the list can be supplemented by local regulations. Examples of advisory right files are parts of the OER and selection and placement regulations.
The big difference between the right to consent and the right to advise is how binding they are. We noted that a proposed decision on a consent file can never go ahead without the co-determination’s consent. With the advisory right, it can. In the case of a proposed decision on an advisory file, the co-determination body is asked for its advice. If the director does not follow the co-determination’s advice, they must explain why in writing, and the co-determination must be given the opportunity to have another discussion with the director on the subject. Imagine, for example, that the director wants to amend the selection and placement regulations – the rules for how students are selected for numerus fixus programmes – they want to introduce a lottery system w, for example. The co-determination body disagrees with this for whatever reason and advises in the negative: ‘don’t do this, stick with the current system’. The director may decide to introduce the new system anyway. They must then explain in writing why they do not accept the advice. The employee participation body also has the right to discuss it further during a consultation. All these steps must be completed before the new regulations are actually adopted.
Although the advisory right is not binding, it remains an important part of a co-determination body’s tools. With good arguments, directors are often willing to make adjustments. Since there are a lot more advisory files than consent files, it is important for co-determination bodies to make good use of this right.
The right of initiative
The right of initiative is the right to make proposals on any subject on one’s own initiative. Like the advisory right, this right is not a binding instrument.
For example, the co-determination body writes a proposal to change the rules around furniture purchasing to include the sustainability of products in the selection process. The director may choose not to adopt this proposal, but the co-determination is given the right to discuss it with the director first.
The right to information
The right to information is quite simple. The law stipulates that co-determination members receive all information they ‘reasonably need to perform their functions’. The board must share this information on its own initiative. In practice, this means that the co-determination body receives documents they need in time to exercise their advice and consent rights. The word “reasonably” already hints at the fact that this right is not always easy or precise to apply. It sometimes happens that the co-determination and the director disagree on how essential certain information is. But in general, it is pretty clear what is covered by the right to information and what is not. If the director does not share a document of their own initiative (because they don’t think you need it, for example), you can always request it.
The right to support
Co-determination is entitled to official, financial, and legal support and training. In practice, this means that they can request help from legal experts, or some form of official support (secretarial help, for example), follow necessary training (on the rights of the co-determination, for example), and also have financial resources at their disposal. What is important to see here is that those financial resources must therefore be available for more than just the aforementioned legal and official support and training. Networking functions, constituency consultation and travel and expenses are examples of other important purposes.
You claim the right to support by asking your executive about it. Then explain what you need and why. This can be done in a letter, during a consultation meeting or through a simple e-mail. It may be that the director thinks you do not need this support, but they must have a very good reason for this. The interpretation of the right to support (e.g. the amount of the board’s budget) is often negotiated.
The enhanced right of initiative
This is a very special right. First of all, only central councils have this right, i.e. the university council or university of applied sciences council. This right is a kind of combination of the right of initiative and the right to consultation: namely, this is the right to invite the Executive Board twice a year to a consultation with an agenda determined by the council. Twice a year, therefore, you sit down with the Executive Board anyway and can present whatever initiatives you want. The Executive Board is expected to respond substantively to the proposals.
Of course, proposals are not the only things you can discuss at these consultations. They are also perfect moments to discuss the larger strategic line of the institution, or to sound out how the CvB is thinking about a particular topic. In any case, it is important to make the most of these consultations. Make sure that the co-determination body sets the agenda!
In a divided system (with separate employee and student councils), this right is retained:
For the works council, WOR section 24(1) (the Works Councils Act) then applies, this consultation works slightly differently. It is not, as it is under the WHW, a separate consultation, but explicitly two of the consultation meetings per year. The Executive Board and the workers council together determine the agenda. It must specifically deal with the upcoming decisions of the director on which the workers council has the right of advice or consent, and how the co-determination will be involved. So, this is a perfect time to discuss upcoming matters in advance and anticipate an outcome that the workers council finds favourable.
For the student council, according to WHW article 9.30 paragraph 3 second sentence (for universities) or WHW article 10.16a paragraph 3 second sentence (for universities of applied sciences), they must be granted rights at least equal to those of an undivided council. This means that the student council has at least the enhanced right of initiative described above, but it is possible that the student council has more rights. There must be co-determination regulations (sometimes called student regulations, or something similar) that set out the rights of the student council.