Court of Haarlem 10 April 2012, LJN: BW3952
The composition of the Works Council is determined by the outcome of Works Council elections. The Works Council regulations stipulate how Works Council elections are organized. In short, Works Council elections can take place on the basis of 1) the individual candidate system, in which individuals present themselves as candidates, or 2) the list system, in which individuals unite on a joint list. Both systems use lists of candidates.
Lists of candidates are submitted by (a) the trade unions and (b) a group of employees entitled to vote who are no members of a trade union that has submitted a list: the so-called independent lists.
Within the electoral systems there are various possibilities to set up the Works Council elections. A choice can be made for 1) an integral system, in which all employees entitled to vote may vote for all candidates of the company, or 2) the electoral groups system, which divides the company into groups (according to position or characteristic) or component parts (by department or branche), or 3) a combination of both.
The present case concerned the Works Council of Albert Heijn. In its regulations the Works Council had opted for the electoral groups system.
The Facts
The Works Council consisted of 18 members: ten from the shop organization, seven from the logistics department and one from the head office. Of the ten members from the shop organization, four were elected from electoral groups consisting of managers and team leaders and six from the electoral groups consisting of the other employees. The regulations furthermore stipulated that an independent list of candidates required a maximum of five signatures.
Just before the Works Council elections, the trade unions requested a postponement of the elections. They thought that the classification into electoral groups gave an incorrect representation of the persons working in the company, because there would be an extreme underrepresentation of store workers and an extreme overrepresentation of managers. In addition, the trade unions were of the opinion that the required number of signatures for the independent lists should not be five, but, in conformity with Section 9 of the Works Councils Act, thirty. Therefore, the trade unions were of the opinion that the regulations had to be amended and claimed a postponement of the elections for this reason.
The Works Council brought forward a defense and argued that the classification into electoral groups already existed since 1999 and had been established in a careful manner. According to the Works Council, the classification into electoral groups was justified because the staff consisted of many part-timers and students. A proper application of 'one man one vote' would lead to a disproportionate outcome. With regard to the independent lists, the Works Council argued that the Works Councils Act does not provide for the obligation of thirty signatures.
Court of Haarlem, 10 April 2012
The Court in preliminary relief proceedings established that when classifying electoral groups the Works Council has a great freedom within the purposes of the law. However, the classification chosen here does raise some questions. The purpose of assigning electoral groups is to facilitate the representation of as many job groups as possible within the Works Council, not to pursue a "quality policy" in respect of the composition. Although the Court in preliminary relief proceedings did not rule out that in the end the Subdistrict Court would declare the objections of the trade unions well-founded, at this moment a postponement of the elections would have (too) many undesired side effects. Since the trade unions raised their objections against the methodology that had already existed for more than ten years very shortly before the elections and it was unsure whether the postponement of the elections would enable the parties to design an improved election methodology, the claim was denied. With respect to the list of candidates the rule is that no higher number of signatures than thirty may be required. Therefore, the five signatures included in the regulations are indeed not in breach of Section 9 of the Works Council Act.
Conclusion
This judgment makes clear that although the Works Council has a large degree of freedom to classify electoral groups, a proportional representation of the staff is of paramount importance. Making distinctions in order to guarantee 'the quality' does not fit into this. Nevertheless, a disproportionate representation can be maintained if a change of the Works Council would have (too) big consequences for the organization, as is the case here. It is therefore important to take into account the circumstances of the case. To conclude, it must be taken into consideration that the proceedings at issue were preliminary relief proceedings. The chance that in proceedings on the merits the trade unions will still win is not imaginary when the consequences for the organization are less direct. If that happens, the electoral groups will have to be classified once again.
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