Employers bear increasing responsibility for realizing climate plans and reducing emissions in business mobility. Although some employers are more diligent about this than others, this transition is increasingly leading to environmental measures coming on the agenda that impact employees and/or the work being done. In practice, we see that works councils are often insufficiently involved in these measures, even though the law requires them to be. Reason enough to consider this in this article.
Entrepreneurs and works councils often forget that it is part of the works council’s task to: “promote the company’s care for the environment, including making or changing of policy, organizational and administrative provisions relating to the environment”. This care task is laid down in Article 28(4) of the Works Councils Act (WCA) and requires the works council to show initiative in urging the entrepreneur to take action in this area.
The works council has various means at its disposal to carry out this duty of care. For example, the works council has the right to request information on this subject and can put the subject on the agenda for the consultation meeting. The works council can also make an initiative proposal to which the entrepreneur will have to respond in substance. Moreover, the works council can choose to set up a committee or to engage an external expert in this field to strengthen its duty of care.
The WCA also contains an important provision that supports the works council in fulfilling its duty of care. Since 1998, the right to advise in Article 25 paragraph 1, sub l of the WCA has been extended to include: “a proposed decision to take an important measure related to the company’s care for the environment, including the adoption or amendment of policy, organizational or administrative provision related to the environment”. This advisory right does not yet play a major role in practice, but we expect this to change soon under public and regulatory pressure. The wording of the right to advise is in line with the duty of care of the works council, giving it a broad scope.
Because there has been little or no litigation on this specific right to advice, its interpretation is not entirely clear. The existence of an environmental measure will not be in dispute when a major sustainability improvement is made to the production process or provisions are made to reduce emissions. Much more often, however, the environmental aspect will only be part of the considerations that lead to a proposed decision. For example, a business relocation may be motivated partly by the desire to move to a more sustainable building. And an important relationship with a customer or supplier may be terminated partly because it does not sufficiently match the (environmental) course. In our estimation, the right to advice on the basis of sub l may also apply in such cases, despite the fact that the environmental aspect is part of a broader decision. In all cases, it must be assessed whether the environmental aspect is “significant”. It is obvious that, besides operational, financial and social consequences, the most important test is the contribution the environmental aspect has to the company’s concern for the environment.
What makes the right to advice under sub l unique compared to other rights to advice is that policy provisions are also included in the right to advice. On this basis, environmental plans or environmental objectives could also be subject to the right to advice, even though they may not yet have been translated into concrete proposed decisions. A works council that realizes this can become involved in determining the (environmental) course of its company at an early stage.
The conclusion is that the law provides sufficient means to intensify employee participation in times of climate transition. As the attention for this is increasing, this topic will (have to) become increasingly higher on the agenda of entrepreneurs and works councils. Where works councils previously paid indirect attention to the environmental effects of a proposed decision in their advice, the environmental aspect is expected to become increasingly prominent and may even be discussed in appeal procedures. In this way, the works council can promote that its company takes environmental measures and thus contribute to the climate transition.
Want to know more? Feel free to contact Niels van Boekel.
