The short answer is 𝐲𝐞𝐬. Setting up a works council can be a time-consuming process, so start in time!

𝐖𝐡𝐞𝐧 𝐭𝐨 𝐬𝐞𝐭 𝐮𝐩 𝐚 𝐰𝐨𝐫𝐤𝐬 𝐜𝐨𝐮𝐧𝐜𝐢𝐥?
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:

· 0-10 𝐞𝐦𝐩𝐥𝐨𝐲𝐞𝐞𝐬: no regulations regarding consultation and co-determination are applicable.
· 10-49 𝐞𝐦𝐩𝐥𝐨𝐲𝐞𝐞𝐬: 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.
· 50 or more 𝐞𝐦𝐩𝐥𝐨𝐲𝐞𝐞𝐬: the entrepreneur is obliged to set up a Works Council of 3 – 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.

𝐖𝐡𝐚𝐭 𝐢𝐟 𝐚 𝐜𝐨𝐦𝐩𝐚𝐧𝐲 𝐝𝐨𝐞𝐬 𝐧𝐨𝐭 𝐡𝐚𝐯𝐞 𝐚 𝐰𝐨𝐫𝐤𝐬 𝐜𝐨𝐮𝐧𝐜𝐢𝐥?
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 – however – be risky for several reasons:

· 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.
· 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.
· 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.