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Please follow the queue: European or Belgian works council first?

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In a recent post, our colleagues of Clint Littler (The Netherlands) addressed the question whether the European Works Council (EWC) had to be informed before or after the Dutch works council (http://www.clintlegal.com/blog/ewc-not-entitled-to-pull-rank/). This is also a relevant question under Belgian law, but unfortunately the answer is not clear. Looking at the European directive on which the EWC is based, the procedure for information and consultation of the EWC and the interactions between the EWC and national employee representative bodies can be regulated in the agreement governing the establishment and operation of the EWC. But what if this agreement does not deal with the issue? Article 45 of the Belgian national collective bargaining agreement (CBA) No. 101 stipulates that in such a case, the process of information and consultation of the EWC and the national employee representative bodies should be followed if decisions are contemplated that will probably entail important changes to the work organisation or the employment contracts. This does however not say anything about the timing. In the – non-binding – comments under this article, it is specified that the process should take place “simultaneously” at the level of the EWC and the national employee representative body, bearing in mind the roles and competences of these bodies. To complicate matters further, article 11 of CBA No. 9, which deals with the role of the Belgian works council in relation to important structural changes, stipulates that the Belgian works council needs to be informed and consulted before any announcement (i.e. before the EWC?). Belgian law therefore does not provide a clear order in which to consult the EWC and the national employee representative bodies. Starting with the Belgian works council and shortly after informing the EWC is an option to reconcile all rules, but there can certainly be alternatives depending on the matter and the practices existing within the corporate group. A Belgian court ruling similar to the one referred to by Clint Littler would therefore not come as a surprise… ■
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