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The Position of Dutch Works Councils in Multinational Corporations

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The Position of Dutch Works Councils in Multinational Corporations The Position of Dutch Works Councils in Multinational Corporations Citation for published version (APA): Meyer, M. (2018). The Position of Dutch Works Councils in Multinational Corporations. The Hague: Eleven International publishing. https://doi.org/10.26481/dis.20180409mm Document status and date: Published: 01/01/2018 DOI: 10.26481/dis.20180409mm Document Version: Publisher's PDF, also known as Version of record Please check the document version of this publication: • A submitted manuscript is the version of the article upon submission and before peer-review. There can be important differences between the submitted version and the official published version of record. People interested in the research are advised to contact the author for the final version of the publication, or visit the DOI to the publisher's website. • The final author version and the galley proof are versions of the publication after peer review. • The final published version features the final layout of the paper including the volume, issue and page numbers. Link to publication General rights Copyright and moral rights for the publications made accessible in the public portal are retained by the authors and/or other copyright owners and it is a condition of accessing publications that users recognise and abide by the legal requirements associated with these rights. • Users may download and print one copy of any publication from the public portal for the purpose of private study or research. • You may not further distribute the material or use it for any profit-making activity or commercial gain • You may freely distribute the URL identifying the publication in the public portal. If the publication is distributed under the terms of Article 25fa of the Dutch Copyright Act, indicated by the “Taverne” license above, please follow below link for the End User Agreement: www.umlib.nl/taverne-license Take down policy If you believe that this document breaches copyright please contact us at: [email protected] providing details and we will investigate your claim. Download date: 23 Jul. 2019 Maastricht Law Series 3 Marcus Meyer The Position of Dutch Works Councils in Multinational Corporations Maastricht Law Series This book sets out to answer two main questions: what is the status quo of the position of Dutch works councils in multinational corporations? And which tools within the Dutch legal framework can be utilised in order to secure the successful involvement of the works council in the decision- making process in light of the increasingly globalised economy? The findings show that many participation rights are frequently used in practice, but not always. The inventory of good practices further revealed that a multitude of potential solutions are applied in practice. They show that, through negotiation and long-term experiences with participation mechanisms, tailor-made employee participation processes can be achieved. Overall, the position of the examined Dutch works councils is solid. However, works councils, management and supervisory boards and other stakeholders need to work on several aspects in order to improve the position of works councils and to safeguard their statutory rights – a theme that is emphasised throughout this study. About the author: Marcus Meyer’s primary research focus is on employee participation issues in multinational corporations, both under national and EU law. His research is primarily of an empirical nature and focuses both on quantitative as well as qualitative legal research. Having participated in a number of research projects on cross-border mergers and corporate mobility, he also has a strong interest in corporate governance issues. About the Maastricht Law Series: Created in 2018 by Boom juridisch and Eleven International Publishing in association with the Maastricht University Faculty of Law, the Maastricht Law Series publishes books on comparative, European and International law. The series builds upon the tradition of excellence in research at the Maastricht Faculty of Law, its research centers and the Ius Commune Research School. The Maastricht Law Series is a peer reviewed book series that allows researchers an excellent opportunity to showcase their work. The Position of Dutch Works Councils in Multinational Corporations The Position of Dutch Works Councils in Multi­ national Corporations Marcus Meyer Published, sold and distributed by Eleven International Publishing P.O. Box 85576 2508 CG The Hague The Netherlands Tel.: +31 70 33 070 33 Fax: +31 70 33 070 30 e-mail: [email protected] www.elevenpub.com Sold and distributed in USA and Canada International Specialized Book Services 920 NE 58th Avenue, Suite 300 Portland, OR 97213-3786, USA Tel: 1-800-944-6190 (toll-free) Fax: +1-503-280-8832 [email protected] www.isbs.com Eleven International Publishing is an imprint of Boom uitgevers Den Haag. ISBN 978-94-6236-848-4 ISBN 978-94-6274-872-9 (E-book) © 2018 Marcus Meyer | Eleven International Publishing This publication is protected by international copyright law. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior permission of the publisher. Printed in The Netherlands Table of Contents Acknowledgements 13 Chapter I: Introduction 15 1 Background of the study 15 2 Relevance of the study 16 3 Research objective 17 4 Research approach 19 5 Structure of the study 21 6 Transparency disclosure 23 Chapter II: Methodology 25 1 Introduction 25 1.1 Conceptualisation and operationalisation 27 1.2 Empirical analysis 31 1.2.1 Quantitative analysis: online-questionnaire 33 1.2.1.1 Sampling 35 1.2.1.2 Pretesting 37 1.2.1.3 Representativeness of the questionnaire 37 1.2.1.4 Validity and reliability of the sample 42 1.2.1.5 Scope of the Dutch works councils included in the sample 43 1.2.1.6 Position of the individual respondents within their works council 44 1.2.2 Qualitative analysis 46 1.2.2.1 Structure of the interviews 48 1.2.2.2 Ethical considerations 49 1.2.2.3 Validity and reliability 49 1.2.2.4 Analysis of the qualitative results in ATLAS.ti 51 Chapter III: The Dutch legal framework 55 1 The Dutch legislative framework on employee participation 55 1.1 Introduction 55 1.1.1 Brief overview of the historical development of works councils in the Netherlands and Western Europe 56 1.1.2 Conceptualisation of employee participation 62 1.2 Forms of employee participation 64 1.3 The Dutch works council 67 1.4 Rights of the Dutch works council 70 1.4.1 Information rights of the Dutch works council 71 5 Table of Contents 1.4.1.1 The Harrewijn Act of 2006 74 1.4.1.2 Theentrepreneur within the meaning of the WCA 77 1.4.2 Consultation rights of the Dutch works council 77 1.4.2.1 Article 25(1)(a) WCA 79 1.4.2.2 Article 25(1)(b) WCA 81 1.4.2.3 Article 25(1)(c) and (d) WCA 82 1.4.2.4 Article 25(1)(e) WCA 84 1.4.2.5 Article 25(1)(h) and (i) WCA 85 1.4.2.6 Article 25(1)(j) WCA 86 1.4.3 Consultation right on the appointment or dismissal of the management 86 1.4.4 Right to appeal pursuant to article 26 WCA 88 1.4.5 The right to speak at the general meeting of shareholders 90 1.4.6 The (possible) right of inquiry 94 1.4.6.1 Conclusion 101 1.4.7 Other rights of the Dutch works council and its members 102 1.4.7.1 The right to set up committees 102 1.4.7.2 The right to consult internal and external experts 103 1.4.7.3 The right of access to facilities of the undertaking 103 1.4.7.4 The right of access to training 104 1.4.7.5 Protection from unfair treatment resulting from the works council membership 104 1.4.7.6 Additional rights through covenants 105 1.5 Duties of the Dutch works council 105 1.5.1 The composition of the works council, elections and terms of office 106 1.5.2 The mode of decision-making in the works council 107 1.5.3 Duties regarding meetings with the management 108 1.5.4 Confidentiality 109 1.5.5 Other duties 110 2 The added value of works councils in multinational corporations 110 2.1 Less labour fluctuation 111 2.2 Enhanced trust 112 2.3 Greater labour productivity and incremental product innovation 113 2.4 Direct and indirect costs of employee representation 114 2.5 Concluding remarks 116 3 Multinational corporations: conceptualisation and analysis of specific characteristics 117 3.1 The notion of multinational corporations 118 3.2 The structure regime 121 3.2.1 Full application of the structure regime 124 3.2.2 Exemption from the structure regime 128 6 Table of Contents 3.2.3 Partial application of the structure regime 130 3.2.4 Voluntary application of the structure regime 136 3.2.5 Conclusion 138 4 The concepts of attribution of an (intended) decision and co-entrepreneurship 139 4.1 The separate legal entity principle 141 4.2 Attribution of an (intended) decision – definition and criteria 142 4.2.1 The notion of the wholly-owned subsidiary and overwhelming control 143 4.2.2 The (intended) decision has to be implemented in the subsidiary 144 4.2.3 The weighing of all interests at stake 145 4.2.4 The notion of sufficient leeway of the subsidiary and the effet utile of employee participation 147 4.2.5 The tangibility of an (intended) decision 147 4.2.6 Personal union of the management(s) 149 4.2.7 Attribution in the case of share transactions 150 4.2.8 Conclusion – the criteria necessary for an application of the technique of attribution of an (intended) decision 152 4.3 Co-entrepreneurship – definition and criteria 154 4.3.1 Direct interference
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