Right to advice Works Council during restart
The Supreme Court made an important ruling in the field of employee participation with its judgment of June 2, 2017 (regarding DA Holding and Holland Pharma). The Supreme Court has ruled that the Works Council has the right to give advice if the trustee sells business activities or allows them to continue after bankruptcy while preserving jobs.
The right to advice of the works council pursuant to Article 25 WOR in principle does not apply to (decisions to) sell goods under Article 176 Fw and to (decisions to) dismiss employees under Article 40 Fw, even if such sale or dismissal results in the termination of the enterprise. The actions of the trustee are then aimed at the liquidation of the (business) assets, for which the Bankruptcy Act authorizes him, and the interests protected by the advisory right of art. 25 WOR must in such a case give way to the interests of the creditors in a swift and as advantageous as possible settlement for the estate.
However, if the sale of assets takes place in the context of a continuation or restart of (parts of) the business by the same or another entity, with the prospect of preserving jobs, a decision aimed at this is subject to consultation obligation pursuant to article 25 paragraph 1 WOR (for example, part a or c).
In the event of a restart, the trustee will therefore need to seek advice from the Works Council. Curator and OR must conduct themselves in a reasonable manner. However, the trustee is not required to comply with all legal formalities, such as, for example, a 1 month waiting period (art. 25 paragraph 6 WOR).
Our tip to the Works Council is to proactively inquire with the trustee whether there are plans for a restart and if so; point out to the trustee the right to advice in the event of a restart / takeover after bankruptcy. In exercising this right of advice, flexibility and speed must be observed.
An extremely interesting follow-up question, in our opinion, is whether the protection of transfer of undertaking will also apply in insolvency proceedings?
http://deeplink.rechtspraak.nl/uitspraak?id=ECLI:NL:HR:2017:982
