Summer holidays? A good time to consider the role of the works council

When is works council consent required?

Section 27(1)(b) of the Dutch Works Councils Act provides that the employer requires the works council’s consent for the adoption, amendment or withdrawal of a working time and rest time arrangement or a holiday arrangement.

This includes, for example, arrangements on:

• collective holidays or company shutdowns;
• the procedure for requesting and scheduling holidays;
• leave arrangements;
• shift work;
• structural schedules and working hours.

The key point is that the arrangement must be a general policy that can be applied repeatedly to a group of employees. An individual decision – such as rejecting a single holiday request or making a one-off change to an employee’s schedule – does not fall within the scope of the right of consent.

Not everything relating to holidays requires consent

In practice, this is often a point of discussion. The works council does not have a right of consent in relation to primary employment terms. The number of holiday days to which employees are entitled is regarded in case law as such a primary employment term. The position is different, however, for the way in which, and the period during which, holidays may be taken or scheduled within the organisation. Those organisational arrangements may indeed fall within the scope of Section 27 of the Dutch Works Councils Act.

Case law: where is the line drawn?

In recent years, several district courts have clarified how Section 27 of the Dutch Works Councils Act should be applied in disputes concerning holidays, working time and rest time.

One relevant judgment is the 2021 judgment of the Gelderland District Court concerning Recticel. This employer wanted to be able to scale up and down flexibly between two-shift and three-shift systems, depending on production needs. The subdistrict court held that such a decision indeed constituted a working time and rest time arrangement within the meaning of Section 27 of the Dutch Works Councils Act. Nevertheless, in this case the employer did not have to seek the works council’s consent, because the applicable company collective labour agreement already contained an exhaustive arrangement on this point. The court did make clear that the right of consent is revived if no such collective agreement arrangement applies.

Another example is the 2024 Qbuzz judgment. In that case, the works council refused to consent to new duty rosters because, in its view, they were contrary to the collective labour agreement. The subdistrict court agreed with the works council and rejected the request for substitute consent. A works council may therefore have good grounds to refuse consent if a roster arrangement does not comply with collective labour agreement provisions or does not sufficiently protect employees’ interests.

The slightly older 2015 Rijkswaterstaat judgment is also relevant. That case concerned standard or annual rosters for a group of employees. The subdistrict court held that such rosters form the structural basis for the work pattern and may therefore qualify as a working time and rest time arrangement within the meaning of Section 27 of the Dutch Works Councils Act. The court distinguished between the standard roster itself and the specific monthly or daily rosters derived from it. Consent may be required for the standard roster, because it is a lasting and repeatable arrangement. Fresh consent is not required each time for the later specific implementation within those parameters: the monthly and daily rosters.

Practical lessons for works councils and employers

For works councils, it is advisable to ask the following three questions whenever holiday or working time policies are changed:

• is this a general arrangement or an individual decision?
• does the arrangement fall within the scope of Section 27 of the Dutch Works Councils Act, or does it concern a primary employment term?
• has the subject already been substantively regulated in a collective labour agreement, as a result of which the right of consent lapses?

The same applies to employers. An arrangement introduced without the required consent carries the risk that the works council will invoke the nullity of the decision. This may ultimately lead to proceedings before the subdistrict court, in which the decision may be reversed.

More than a summer issue

Although holiday policy is particularly visible during the summer, Section 27 of the Dutch Works Councils Act plays an important role throughout the year. This includes changes to shift systems, the introduction of new rosters, amendments to leave arrangements or agreements on working hours. The common thread in the case law is clear: as soon as an employer lays down structural rules on when and how employees work or take holidays, it is advisable to assess in good time whether the works council’s consent is required. Both the employer and the works council should be alert to this. This helps prevent legal disputes and usually contributes to policies with broader support.

Questions about the Dutch Works Councils Act or the right of consent? Our Employment Law team is available throughout the summer. Feel free to contact us, or subscribe to our newsletter.