Are there any consequences for not having a works council (while you should have one)?

The short answer is ๐ฒ๐ž๐ฌ. Setting up a works council can be a time-consuming process, so start in time!

๐–๐ก๐ž๐ง ๐ญ๐จ ๐ฌ๐ž๐ญ ๐ฎ๐ฉ ๐š ๐ฐ๐จ๐ซ๐ค๐ฌ ๐œ๐จ๐ฎ๐ง๐œ๐ข๐ฅ?
Under the Dutch Works Council Act, there might be an obligation to set up an employee representative body. The number of employees employed in the company determines whether an entrepreneur is legally obliged to set up a works council or a committee representing employees:

ยท 0-10 ๐ž๐ฆ๐ฉ๐ฅ๐จ๐ฒ๐ž๐ž๐ฌ: no regulations regarding consultation and co-determination are applicable.
ยท 10-49 ๐ž๐ฆ๐ฉ๐ฅ๐จ๐ฒ๐ž๐ž๐ฌ: the entrepreneur may choose (but is not obliged) to establish a committee representing employees consisting of at least 3 employees directly chosen by the employees of the company. However, if a majority of the employees requests a committee representing employees to be set up, the entrepreneur will be obliged to meet such a request. The Works Council Act applies, but gives fewer rights to such committee.
ยท 50 or more ๐ž๐ฆ๐ฉ๐ฅ๐จ๐ฒ๐ž๐ž๐ฌ: the entrepreneur is obliged to set up a Works Council of 3 โ€“ 25 members based on the number of employees working in the company. The Works Council Act applies in full.

The works council has many rights, but the most important rights are 1) the right of advice and 2) the right of approval for important decisions as listed in the law.

๐–๐ก๐š๐ญ ๐ข๐Ÿ ๐š ๐œ๐จ๐ฆ๐ฉ๐š๐ง๐ฒ ๐๐จ๐ž๐ฌ ๐ง๐จ๐ญ ๐ก๐š๐ฏ๐ž ๐š ๐ฐ๐จ๐ซ๐ค๐ฌ ๐œ๐จ๐ฎ๐ง๐œ๐ข๐ฅ?
The company is primary responsible for compliance with the Dutch Works Council Act. If there is no works council, it cannot be involved for advice and the company may take decisions without the intervention of the works council. Not having a works council, can โ€“ however – be risky for several reasons:

ยท Each stakeholder (such as individual employees and trade unions) may request the Court to determine that a company must comply with the obligations pursuant to the Works Council Act.
ยท Not having a works council can lead to serious delay in a decision-making process. Without a works council, no advice can be requested (while the company can be obliged to ask advice before taking a decision). The delay will then be caused by the process to set up a works council, which requires a proper election process, considering an average timeline of 13 weeks before the election day.
ยท Not having a works council while being obliged to have one is considered an economic crime, for which the entrepreneur can be punished.

Below is a roadmap outlining the steps to be taken to establish a works council. Please note that this is a very high-level roadmap and (additional) legal advice is highly recommended.

Setting up a works council


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