Court of Appeal of The Hague, 29 November 2011, LJN:BU7160
The Facts
On 15 September 2009, the employer requested the Works Council to grant its consent to changes in the pension scheme for the office staff. The Works Council refused to grant its consent. The employer then asked the sectoral committee for its advice and mediation. On 13 July 2010 the sectoral committee delivered a written advice. The Works Council told the employer that it was not willing to cooperate in the solution proposed by the sectoral committee. On 1 October 2010 the employer then filed an application to the Subdistrict Court pursuant to Section 27 (4) of the Works Councils Act (Wet op de ondernemingsraden, "WOR"), requesting permission to take this decision still. On 1 April 2010, the Works Council pointed out to the Subdistrict Court that the application of 1 October 2010 was filed after the term of thirty days as envisaged in Section 36 (4) of the WOR. The Subdistrict Court then declared that the employer's application was inadmissible after all. The employer appealed and argued, in brief, that the reliance of the Works Council should be deemed to be out of time (since it was not put forward in respect of all defenses), and as an abuse of rights, because the Works Council relied on the excess of the term at such a late time.
Court of Appeal of The Hague
The Court of Appeal dismissed the appeal lodged by the employer and the grounds for appeal formulated in it, and held that the Subdistrict Court had rightly declared the employer's application of 1 October 2010 to be inadmissible. The excess of the term specified in Section 36 (4) of the WOR is an established fact. The term of thirty days mentioned in that section, within which an application must be lodged, is a mandatory term and must be tested by the court ex officio. Consequently, reliance by a litigant on the excess of the term is therefore not necessary and does not need to be put forward in respect of all defenses. Reliance on the excess of the term at a late stage does not constitute an abuse of rights or a contravention of reasonableness and fairness.
Tips
- The Works Council that requests the Subdistrict Court pursuant to Section 36 of the WOR to rule that the employer must comply with the provisions in or pursuant to the WOR, is also bound by the strict thirty-days' term. It is important to observe Section 36 (4) of the WOR, because going to the Subdistrict Court is no longer possible if an application has not been filed within thirty days after the sectoral committee's mediation or advice.
- The term of thirty days may only be prolonged if the other party expressly agrees to this.
First published in the Kennedy Van der Laan newsletter - January 2012
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