Key takeaway
The flexibility offered by the DWCA for organizing works council elections must be carefully matched to the organization's size, structure, and workforce.
In depth
Establishing a works council
The DWCA grants employees the right to be involved in decision-making processes through a works council (ondernemingsraad or OR). For enterprises with 50 or more employees, establishing a works council is not optional, but it is a statutory obligation. However, the DWCA leaves room for flexibility in how elections are conducted. Two key decisions must be made: (i) the electoral system to be used; and (ii) whether the electorate should be divided into constituencies. These decisions are legally distinct but can be combined in various ways.
Legal framework for the electoral process
The DWCA provides the legal foundation for the electoral process. The organization of the elections is the responsibility of the works council. However, the election of the first works council is organized by and under the responsibility of the employer.
Electoral systems: individual candidate system vs. list system
One of the first and most important decisions in organizing elections is selecting the appropriate electoral system. This refers to the system by which eligible candidates are elected. This system must be transparent, fair, and proportional to ensure legitimacy and trust. There are two methods for electing members to the works council. The first is the individual representation model, and the second is the list-based system.
The individual representation model
In the individual representation model (personenstelsel), voters cast their votes for individual candidates. Each voter may vote for as many candidates as there are seats to be filled: either in the works council as a whole or within their constituency if constituencies are used. The candidates with the highest number of votes are elected. This system is particularly suitable for smaller organizations or where there is a high degree of familiarity between employees. It promotes personal accountability and direct representation. However, in larger organizations, it may lead to fragmentation or voter confusion, especially when the number of candidates is high or when voters are unfamiliar with the individuals on the ballot.
From a legal perspective, the system must ensure that all voters cast the same number of votes. Any deviation, such as allowing some voters to cast more votes than others, would violate the principle of electoral equality. The Ministry has ruled that even well-intentioned deviations (e.g., to avoid unfilled seats) must be carefully regulated to avoid undermining the democratic process.
The list-based system
In the list system (lijstenstelsel), voters cast a single vote for a list of candidates. These lists are typically submitted by trade unions, employee associations, or informal groups of employees. Seats are allocated proportionally based on the number of votes each list receives. Remaining seats are distributed using the largest remainder method, although other methods such as the highest averages method may be used if justified.
This system is more appropriate for larger organizations where personal acquaintance between voters and candidates is limited. It promotes group representation and administrative efficiency. However, it may reduce the visibility of individual candidates and can lead to dominance by larger groups unless safeguards such as electoral thresholds are introduced. The DWCA allows for the introduction of such thresholds, but they must not be so high as to exclude smaller groups from representation.
Constituency structure
Apart from choosing the electoral system, the works council may also decide to divide employees into voting groups, known as constituencies (kiesgroepen). Under Article 9(3) of the DWCA, the works council can create these groups based on departments, job roles, locations, or other relevant distinctions. Each group then elects its own representatives. This helps ensure that different parts of the workforce, each with potentially different interests, are fairly represented. Using constituencies is especially useful in organizations that are large, diverse, or spread across multiple locations.
However, the use of constituencies introduces additional complexity. The council's regulations (OR-reglement) must specify:
- The definition and composition of each group.
- The number of seats allocated to each group.
- That candidate nomination and voting occur separately within each group.
The Dutch Ministry of Social Affairs and Employment has stated that combining different employee groups, such as trainees and certified professional, can be legally problematic if it affects the fair representation of employees in the works council. Any grouping must be based on shared interests and must not be arbitrary.
Combining the two dimensions
The electoral system and the use of constituencies are legally independent choices. They can be combined in four configurations:
| Electoral System |
Constituencies Used? |
Description |
| Individual representation model |
No |
All employees vote for individual candidates across the entire organization. |
| Individual representation model |
Yes |
Employees vote for individual candidates within their own constituency. |
| List system |
No |
All employees vote for a list of candidates; seats are allocated proportionally. |
| List system |
Yes |
Employees vote for a list within their own constituency; proportional allocation per group. |
Each combination has different implications:
- The individual representation model without constituencies is simple and personal, but may lack representativeness in larger organizations.
- The list system with constituencies ensures both proportionality and diversity, but requires careful legal and Individual representation model planning.
- The individual representation model with constituencies offers personal representation within defined groups, suitable for medium-sized organizations with distinct departments.
- The list system without constituencies is efficient for large, homogeneous organizations.
Conclusion
The DWCA offers flexibility in how works council elections are organized, but that flexibility must be used carefully. The choice of electoral system and whether to use constituencies should match the organization's size, structure, and workforce.
- In smaller, close-knit organizations, the individual candidate system may be the simplest and most effective.
- In larger or more complex organizations, the list system or the use of constituencies may be more appropriate to ensure fair representation.
The goal is to set up a works council that is representative, effective, and legally compliant. By understanding both the legal rules and the practical impact of each option, employers and initiating committees can make informed choices that support employee participation and good governance.
