In a recent Supreme Court (HR) judgment of 3 November 2023 (ECLI:NL:HR:2023:1514, Hoge Raad, 22/04443 (rechtspraak.nl), the HR ruled that any decision to hire workers on a group basis by entering into (or renewing) framework agreements with temporary employment agencies must be submitted to the works council (OR) for advice pursuant to Section 25 (1) (g) of the Works Councils Act (WOR). This is also the case if it concerns a groupwise attraction of workers that is customary for the company and such a decision is therefore in line with previously implemented policy.
Section 25 paragraph 1 sub g WOR is clear, stating that “The works council shall be given the opportunity by the entrepreneur to give its advice on every decision it intends to: (…) g. group recruitment or hiring of workers”.
The reason it is nevertheless important that the HR provided clarity on the scope of this article in this ruling is that – among other things – there was uncertainty as to whether a decision to enter into framework agreements for hiring personnel is a decision requiring consent. Indeed, it could be argued that such an agreement is an arrangement in the field of recruitment policy and therefore requires consent (Section 27 (1) introductory words and subsection e WOR). In addition, the difference between (incidental) recruitment or appointment and hiring has also been addressed in this HR ruling, as the HR ruled that recruitment and hiring have a different assessment framework in Section 25 WOR.
Facts: AH Online hires employees from temporary employment agencies. Albert Heijn Online (AH Online) makes agreements about this every two years, which are laid down in framework agreements. The works council wants to be involved in the decision-making on entering into the framework agreements because temporary employees perform almost all the work at that part of the organisation. In the present case, the works council of AH Online sought a declaratory judgment that AH Online, when balancing the interests involved, could not reasonably have decided to enter into the framework agreements, because these agreements were concluded without the advice of the OR (Section 26 (4) WOR).
The Supreme Court decides the case itself and grants the OR’s request.
The HR ruled that it must be assumed that the Works Council is entitled to an advisory right with regard to any proposed decision to hire workers in groups. In the case of group recruitment, there is only an advisory right when there is incidental recruitment that deviates from previous policy.
Consequences: What are the consequences for an employer who has taken an advisory decision without seeking the advice of the works council? These were limited in this case because the Works Council only sought a declaratory ruling that AH Online’s decision was unreasonable. After all, the framework agreements had already been concluded and a court-ordered remedy cannot affect the rights of third parties (in this case, the employment agencies). The OR therefore did not seek to compel AH Online to withdraw the decision in whole or in part or to prohibit AH Online from continuing to implement the decision (Section 26 (5) WOR).However, it does help the OR for the future. When entering into new (framework) hiring agreements, the employer will have to seek advice from the works council.