Guidelines on Organisational Changes and Participation

1. Introduction

The latest version of the Radboud University Guideline to Organisational Changes and Employee Participation is dated 29 June 2015. Agreement was reached in mid-2021 for the Collective Labour Agreements for Dutch Universities (CAO NU) 1 January 2021 - 31 March 2022. The provisions on reorganisations have been amended in this CAO. This requires adjustment/revision of this guideline.

The most significant changes compared to the 2015 version concern:

• Adjustment to definition of reorganisation
• Tightening of definitions has radical consequences for the legal position
• Clarification of categorisation

2. What is this guideline about?

This guideline deals with questions of when and how organisational changes should be submitted to the participational bodies. ‘Participational bodies’ is understood to mean the Works Council (OR) and/or the Representative Councils (OCs), which have been established on the Works Councils Act (WOR), as well as the Local Council (LO), where the trade unions are represented. This guideline also deals with the specific advice procedure in the instance of reorganisations and other changes, and the requirements for drawing up and implementing a reorganisation and personnel plan.

3. The legal framework

This guideline is based on current legislation, regulations and case law. This is directly linked to:

1. Article 25 of the Works Councils Act (WOR);
2. Chapter 9 Reorganisation of the Collective Labour Agreement for Dutch Universities.

Article 25, paragraph 1, subsections c, d and e of the Works Councils Act, combined with the definition of the understanding of reorganisation in the CAO, often results in the discussion of whether organisational change is significant or not. Unambiguous interpretation of the terms contained in these articles is therefore important. As such, the following aspects are addressed in this updated guideline:

• What is an organisational change?
• What is a major organisational change?
• What is a significant organisational unit and what role does the IM unit play in it?
• Immediate and radical consequences for legal systems and
• The number of employees affected

The following section explains these concepts in greater detail.

4. Explanation of the conceptual framework for organisational changes

4.1. What is an organisational change?

An organisational change is an alteration to the organisation’s structure and/or the size of the organisation or a significant part thereof, which does not take part in regular business operations. The motivation may be purely financial in nature (cutbacks, business considerations), but substantive, strategic new considerations may also motivate organisational changes. For example, changes to support structures, reconsideration and reorganisation of tasks, increasing customeroriented work, increasing efficiency, changing student numbers, changes to research funding and 4 financing, to name a few. Everyday organisational adjustments within regular business operations are not considered as organisational changes.

4.2. What is a major organisational change?

Pursuant to Section 25 of the Works Councils Act, the Works Council will be given the opportunity to render advice on any decision it proposes to make with regard to:
a. the transfer of control of the company or any part thereof;
b. the establishment, take-over or relinquishment of control of another enterprise, or entering into, making a major modification to or severing a continuing collaboration with another enterprise, including the entering into, effecting of major changes to or severing of an important financial holding on account of or for the benefit of such an enterprise;
c. termination of operations of the enterprise or a significant part thereof;
d. any significant reduction, expansion or other change in the enterprise’s activities;
e. major changes to the organisation or to the distribution of powers within the enterprise;
f. any change in the location of the enterprise’s operations.

Section 25 of the Works Councils Act repeatedly uses the terms ‘major’ and ‘significant’ without defining them. Whether an organisational change is major or not is determined by looking into the magnitude of the organisational change, the magnitude of financial consequences, the magnitude of the consequences for staff and the substantive consequences of the organisational change. A ‘significant’ decision within the meaning of Section 25 of the WOR is, in the first place, an unusual decision for the business concerned. Other factors for determining whether or not an organisational change is major include the relevant social, procedural and economic/organisational factors:

• The term social factors refers to direct and radical personal consequences for employees, such as the impact on employment and work (also see paragraph 4.4). The number of employees affected by the decision also plays a role (also see paragraph 4.5). A decision without consequences that affect employees can also be significant in certain circumstances.
• The term procedural consequences refers to the frequency with which such decisions are taken (the more frequent, the more likely they are to be ‘minor’), as well as the duration of the decision (the longer it is, the more likely it is to be ‘major’). What is important here is whether or not it concerns a decision that fits in with regular (daily) business operations. A decision that will have particular company-organisational or financial-economic consequences may prove significant. However, not every decision is major because the consequences may be of relatively little significance for the organisation or part of the organisation.
• In the case of economic/organisational factors, the question is whether it concerns a core activity of the company (in the latter case, it is more a matter of ‘major’) and what the significance of the activities to be reduced or changed is within the total of the core activities.

Generally, a decision is major when:

1. the decision is isolated and therefore does not fit within regular business operations, and/or
2. the decision is essential for or has a substantial effect on the core activities and/or
3. the decision has consequences for a relatively large number of employees (also see paragraph 4.5).

NB 1: It is not possible to split a decision with significant consequences into partial decisions with only limited consequences. Partial decisions should be considered as a whole, none the less.

NB 2: A decision is minor because a particular ‘significant’ person (director) decides that it is. It is always a ‘major change’ or a ‘significant part’.

4.3. What is a significant organisational unit and what role does the IM unit play in it?

The Works Councils Act and the CAO also include the concept of a ‘significant part of the organisation’, or significant organisational unit. Within Radboud University, the term ‘IM unit’ (an Integrated Management unit) is used in this context. Within Radboud University, this concerns the faculties, Radboud Services and the institutes Donders Centre for Cognitive Neuroimaging (DCCN) and Radboud Teachers Academy (RDA). Every unit has a Representative Council set up by the Works Council. The faculties, Radboud Services and the institutes are then divided (each in its own way) into sub-units; departments, sections, sectors, institutes, etc.

The faculties, Radboud Services and the institutes mentioned are therefore considered to be significant organisational units in all circumstances. Whether a sub-unit is classified as significant or not depends on whether the sub-unit is important to the IM unit. The question is whether the subunit’s activities are significant or important to the IM unit’s core activities and/or whether the organisational change to the sub-unit substantially affects the IM unit’s core business.

4.4. Foreseeable compulsory redundancies and/or immediate, radical consequences for the legal position

Article 9.1 of the CAO NU states that: “Reorganisation within a university, or a part thereof, is understood to mean a change in the organisation as referred to in Section 25, paragraph 1, sections a to f of the Works Councils Act, which relates to the university, or an important part thereof, in which compulsory redundancies are anticipated” and “However, organisational changes in which forced redundancies are ruled out do not fall under the definition of ‘reorganisation’ within the meaning of this chapter and the provisions of this chapter do not apply to such changes. Local agreements will be reached on how local employees’ organisations and the relevant representative advisory body will be informed of such organisational changes and how they will be discussed.”

If compulsory redundancies are excluded, there is no question of reorganisation. There may or may not be an organisational change, which is discussed in more detail below.

In addition to anticipated forced dismissals, it may occur that there are immediate, radical consequences for the legal status of individual employees, on the basis of which a role is reserved for the participational bodies. In this respect, this guideline exclusively concerns employee transfers or reassignments to or from another position with an essentially different task package and with a different salary level within their own or another organisational unit.

4.5 The number of employees affected

The number of employees affected by a decision also plays a role in determining whether an organisational change is major or not. However, laws and regulations do not specify a lower limit for the number of employees affected by the immediate and radical legal consequences. To determine a lower limit for the number of employees that should be involved before deciding whether an organisational change is major or not, we must follow the case law concerning scope in Article 25 of the Works Councils Act.

With 20 or more dismissals in a shorter period of time (the norm for the Wet Melding Collectief Ontslag (collective redundancy notification act)), in principle, there will be a ‘major’ decision (and immediate and radical consequences for the legal position). If the number of employees is lower, 10% of the total number of employees in the concerned organisational unit is still a resource. This does not work if 10% of the total only concerns a few employees (2 out of 20 employees is normally ‘minor’ under Article 25 of the Works Councils Act).

5. Categories of organisational change

Within Radboud University, five categories are used for organisational changes:

I. Reorganisation: Major organisational change (as referred to in Article 25 of the WOR) concerning the university or an important part thereof where forced dismissal is anticipated: the Works Council will be given the opportunity to provide advice and the trade unions will be involved in connection with the fact that forced dismissal is anticipated;

II. Major organisational change (as referred to in Article 25 of the Works Councils Act) and overarching IM division level, no compulsory redundancy and/or immediate, radical legal consequences anticipated: the Works Council will be given the opportunity to provide advice.

III. Major organisational change (as referred to in Article 25 of the Works Councils Act) not overarching IM division level and not involving compulsory redundancies and/or immediate, radical legal consequences: the Subcommittee will be given the opportunity to provide advice, unless the Works Council uses its statutory right under Article 15 of the Works Councils Act and, notwithstanding the agreements made in the Decree establishing the Representative Councils, complies with procedures.

IV. Other organisational changes, minor, but involving compulsory redundancies and/or immediate, radical consequences for the legal position: consultation with the Subcommittee.

V. Everyday decisions (day to day arrangements) that include minor organisational changes where no compulsory redundancies and/or immediate, radical consequences for the legal position are anticipated: no task for participational bodies*.

*Although everyday decisions cannot be defined as organisational changes, they are included as such in the guideline.

6. Working method and participation procedure per category of organisational change

In this section, a method and procedure for each category of organisational change are described in greater detail. The method covers the entire process of:

• intended decisions to change the organisation of the Executive Board, Dean/Director of Radboud Services/Institute;
• the discussion in the participational bodies and adoption of the (re)organisation plan;
• the adoption of a potential staffing plan.

In all instances, preparation shall take place in consultation with HR.

The dean/director will be advised by their own HR advisor. The HR advisor will ensure correct and careful implementation of the process, personnel, legal status and other legal aspects that play a role in connection with the organisational change. The HR advisor performs this task in both the preparation and implementation of the intended decision to make an organisational change and, if necessary, in the preparation and implementation of the reorganisation and staffing plan.

In case of a planned organisational change, a dean/director shall consult the HR Division prior to discussion with the participational body about whether it concerns a major (i.e. subject to advice) organisational change and whether forced dismissal and/or immediate, radical legal consequences are anticipated.

6.1. Category I: Reorganisation

Description: Major organisational change (as referred to in Article 25 of the Works Councils Act) that relates to the university or an important part thereof in which compulsory dismissal is anticipated. The Works Council will be given the opportunity to issue advice, and the trade unions will also be involved in connection with the fact that the compulsory redundancies are anticipated.

The term ‘reorganisation’ is defined in Article 9.1 of the CAO NU: “Reorganisation within a university, or a part thereof, is understood to mean a change in the organisation as referred to in Section 25, paragraph 1, sections a to f of the Works Councils Act, which relates to the university, or an important part thereof, in which compulsory redundancies are anticipated.”

It must therefore concern a major organisational change and forced dismissal must be anticipated. An organisational change that can also be regarded as a reorganisation is an organisational change that is subject to advice, for which the Works Council has a duty to provide guidance. Discussions will be held with trade unions in the Local Council on how to deal with the legal consequences for the employees concerned.

If the dean or director, in consultation with the HR Division, concludes that there is a major organisational change that necessitates compulsory dismissal, the Executive Board will be informed as soon as possible. Since the organisational change is considered a reorganisation, the Executive Board is responsible for fulfilling its obligations as an employer for the Works Council and Local Council with regard to the participational bodies.

6.1.1. The role of the Works Council and Local Council

The Works Council and the trade unions in the Local Council must be informed in writing of a proposed reorganisation (Article 9.2 CAO) in a timely manner.

• In case of reorganisation, the Works Council has the right to seek advice on the basis of Article 25 of the Works Councils Act. This right is explicitly not assigned to the Representative Council in the Representative Councils’ decree decisions. The Representative Council advises the Works Council upon request or at its own initiative.
• The trade unions in the Local Council are informed. The Radboud University Social Plan 2020- 2025 is applicable. This means that in the instance of reorganisations, in principle, no social plan can be agreed on. Additional social measures may be agreed with the trade unions.

If there is no intention to dismiss at least 20 employees (in one instance or multiple times over a period of 3 months), there is an obligation under the Wet Melding Collectief Ontslag (collective redundancy notification act) to report this in writing to the UWV and to consult the trade unions.

6.1.2. Intention to reorganise (informing the Works Council and Local Council)

Pursuant to Article 9.2 of the CAO, the trade unions in the Local Council and the Works Council shall be informed in writing and in good time of any intended reorganisation. This is the ‘notification’, and includes information on the following subjects:
a. the reason for the reorganisation (mandatory);
b. the purpose of the reorganisation (mandatory);
c. the nature and extent of the reorganisation (as far as possible);
d. the financial and/or formative preconditions (as far as possible);
e. the basic principles and preconditions with regard to consequences for employees (as far as possible);
f. the procedure to be followed in preparing and implementing the reorganisation, including an overall timetable (mandatory);
g. the anticipated consequences for the general legal position (mandatory).

6.1.3. Trade unions

The trade unions shall be given the opportunity to discuss with the employer at least once how the consequences of the planned compulsory redundancies for the employees will be dealt with. The Radboud University Social Plan 2020-2025 is applicable. This means that in case of reorganisations, no additional social plan will be agreed on in principle. Additional social measures may be agreed with the trade unions.

6.1.4. The Works Council

Based on the CAO, the employer shall not decide on the intended decision until there has been at least one consultation with the Works Council in a consultative meeting.

For intended reorganisations involving the outsourcing of a significant part of the organisation, the Executive Board and Works Council will discuss the desirability of a phased consultation. In principle, decisions to outsource important parts of the organisation are submitted to the Works Council for its opinion in advance. Agreements are made during the discussion about the organisational change that will lead to reorganisation.

The employer shall draw up a Reorganisation Plan and a Staff Plan pursuant to and considering the intention to reorganise.

6.1.5. Reorganisation Plan (to be submitted to the Works Council for advice)

The Reorganisation Plan accurately describes the intended change to the organisation. In all circumstances, the Reorganisation Plan shall include:
a. the purpose and duties of the new organisational unit and its constituent parts;
b. the quantitative occupancy;
c. the qualitative occupancy.

The Reorganisation Plan shall not be decided upon by the employer until the Works Council has been given the opportunity to provide advice on the plan and has been informed of the applicability of the Radboud University Social Plan 2020-2025 and/or additional social measures. As soon as the Executive Board has submitted the Reorganisation Plan to the Works Council for advice, the dean or director will also inform their Representative Council about the plan.

6.1.6. Staff Pan (inform individual employees and give them the opportunity to respond)

The Staff Plan is created either after or at the same time as the Reorganisation Plan. The Staff Plan is based on the Reorganisation Plan and describes the anticipated legal consequences for the individual employee. In all circumstances, the plan shall include:
a. which employees’ organisational positions will be affected and how;
b. which employees are at risk of dismissal;
c. which employees’ legal positions will be affected immediately and substantially;
d. how the anticipated legal consequences for those employees will be dealt with, taking into account the Social Policy framework and, if available, the Social Plan.

The employer shall not decide on the Staff Plan until every employee named within it has been given the opportunity to respond to what is said about them within the plan. The Staff Plan describes the consequences for individual employees and is a confidential document. The employer (Executive Board or dean/director) is responsible for creating the Staff Plan, and it is not submitted to the participational bodies.

6.2. Category II: Major organisational change overarching IM where no compulsory redundancies and/or immediate, far reaching legal consequences are anticipated

Description: Major organisational change (as referred to in Article 25 Works Councils Act) overarching IM where no compulsory redundancies and/or immediate, far reaching legal consequences are anticipated. The Works Council shall be given the opportunity to provide advice.

An IM-overarching organisational change is an organisational change that goes beyond the scope of an IM unit. This may be an organisational change that substantially affects the whole university or one that affects multiple sub-units within the various IM units. In case of a major IM-overarching organisational change, the Executive Board, in cooperation with the relevant deans/directors, is in charge of the process, and the Works Council shall be asked for advice. The organisational change is discussed at the Works Council level because otherwise multiple Representative Councils would have to be involved in the process, which would make the advisory procedure unnecessarily complicated.

The procedure is the same as Category I, with the proviso that the Local Council is informed, but is not otherwise involved, as there is no suggestion of compulsory redundancy and/or immediate, radical legal consequences. A Staff Plan is therefore not necessary.

6.3. Category III: Major organisational change not overarching IM and where no compulsory redundancies and/or immediate, far reaching legal consequences are anticipated

Description: Major organisational change (as referred to in Article 25 of the Works Councils Act), not overarching IM and where no compulsory redundancies and/or immediate, far reaching legal consequences are anticipated. The Subcommittee will be given the opportunity to provide advice.

Most organisational changes at Radboud University take place at the level of IM units or IM unit subdivisions with a dean or director being responsible. The dean or director is also responsible for drawing up the intention to change the organisation, the organisation plan and the Staff Plan, if relevant.

The Works Council has transferred the power to provide advice on these organisational changes to the Representative Councils. This is included as standard in the Representative Councils’ decree decisions.

In order to prevent potentially differing opinions on the procedure to be followed at a late stage, the Works Council and the Local Council will be notified early on. This means that for Category III organisational changes, the responsible dean/director, in consultation with the HR Division, must submit a brief report of the reason, nature and scope of the intended organisational change and the procedure to be followed. This report will be discussed in an Executive Board meeting first. The HR Division shall then inform (the executive management of) the Works Council so timely action can be taken in the event that the Works Council does not agree with the procedure. The trade unions shall be notified at the same time as (the executive management of) the Works Council.

Content of early report (maximum 1 A4)

Short description of:

• Reason for and aim of organisational change
• Nature and extent of organisational change
• Procedure to be followed in preparing and implementing the change

6.3. Category IV: Minor organisational changes, but anticipated to lead to forced redundancies and/or immediate, radical legal consequences

Description: Other organisational changes, minor, but anticipated to lead to forced redundancies and/or immediate, radical legal consequences. Meeting with the Representative Council

These are organisational changes that are not considered major, but are anticipated to lead to forced redundancies and/or immediate, radical legal consequences. The dean/director shall inform their Representative Council and consult with them about the plans. An early report is made; see the procedure in Category III.

6.4. Category V: Day to day management and arrangements, including general organisational changes

Regular business operations involve everyday organisational changes. This sometimes concerns minor organisational changes where no compulsory redundancy is anticipated. Consider, for example, the moving of an existing role between departments within an IM unit. There is no (formal) role or involvement for the participational bodies.

7. General rules for organisational changes

7.1. Timing of request for advice

The employer shall submit the intended decision to implement an organisational change to the Representative Council/Works Council in writing. Advice shall be requested at such time that it can be considered during the decision-making process. This means that the Representative Council/Works Council must be consulted early on in the decision-making process (i.e. before alternative proposals are chosen) and that, at the time of the advice request, there must be some understanding of the most important consequences of the decision.

7.2. Content of request for advice

The request for advice shall include an overview of the reasons for the intended decision, as well as the expected consequences of the decision for the personnel working in the organisation and the consequent measures.

7.3. Advice procedure

The Representative Council/Works Council must be consulted on the matter concerned at least once during a consultative meeting, before it can issue advice concerning the proposed decision. After one or more consultations, the Representative Council/Works Council shall independently determine its advice in a consultative meeting of its own. Afterwards, the Representative Council/Works Council can submit its advice to the employer in writing or orally in a consultative meeting.

7.4. Grounds for the decision

If a decision to implement an organisational change is taken after receipt of the Representative Council/Works Council’s advice, the employer shall inform the Representative Council/Works Council of the decision in writing as soon as possible. If the Representative Council/Works Council’s advice is not followed, either partially or at all, the Representative Council/Works Council will also be informed as to why their advice has been deviated from.

7.5. Suspension period

Unless the decision is in agreement with the Representative Council/Works Council’s advice, the Description: Other organisational changes, minor, but anticipated to lead to forced redundancies and/or immediate, radical legal consequences. Meeting with the Representative Council 11 employer is obligated to suspend the implementation of their decision until one month after the day the Representative Council/Works Council was informed of the decision. This obligation lapses when the Representative Council/Works Council so demands.

The significance of the suspension period is that it gives the Works Council the opportunity to consider lodging an appeal with the courts without fear that the employer will implement the decision in the meantime. Only the Works Council can appeal to the Enterprise Division. Representative Councils can submit requests to the Works Council to appeal.

7.6. Differences of opinion on the procedure

Although this guideline aims to lay down the procedures for the participational bodies as unambiguously as possible, there may still be differences of opinion on the procedure to be followed.

In such instances, the Works Council can make use of its statutory right, under Article 15 of the Works Councils Act, and decide to withhold its advice, in spite of the agreements made in the decree decisions binding the Representative Councils. This applies without prejudice to the Works Council’s right to appeal to the Enterprise Division.

8. Rules for reorganisation dismissal

8.1. Obligations under Wet Melding Collectief Ontslag (collective redundancy notification act)

Pursuant to the collective redundancy notification act, an employer who intends to dismiss at least 20 employees within a period of 3 months, has the obligation to announce this to the trade unions (based on the CAO) and the UWV in writing. It does not matter how the redundancies are arranged; via the UWV, the courts or by mutual agreement.

8.2. Social Plan

The Social Plan applies to employees who are threatened with dismissal due to the elimination of their job or due to a reduction in the number of interchangeable positions, and after the application of the principle of separation of roles.

9. Other topics

9.1. Advice on commissioning external experts

Article 25, paragraph 1 (n) of the Works Councils Act states that the issuing and formulating of advisory assignments to an expert outside the company regarding matters that involve the right to advise is also subject to advice. At our university, the Works Council has delegated this council to the Representative Councils.

In other words, the Representative Council must be asked for advice on the engagement of an external expert and the formulation of the task, unless it concerns an assignment from the Executive Board, in which case the Works Council is responsible.

9.2. Participation in instances of group recruitment or hiring of labour forces

Article 25, paragraph 1 (g) of the Works Councils Act stipulates that the employer shall give the Works Council the opportunity to provide advice on any intended decision to recruit or hire employees in a group. The recruitment of individual workers or the temporary replacement of individual workers by external parties does not fall under the right to advice.

The conclusion of agreements on the basis of which employees are later recruited or hired as a group does fall under the right to advice. This means that the conclusion of an (umbrella) agreement in which agreements are made about the hiring of individual workers does not fall under the right to advice. The essence of Article 25, paragraph 1 (g) of the Works Councils Act is that it must concern a group of employees who are hired - simultaneously - to perform certain tasks. If there is no group hired for a particular job, there is no right to advice. The recruitment of a project manager for a 12 particular project (or 5 project managers for 5 separate projects) is therefore not covered by the right to advice.

9.3. Diagram

There is a diagram in the Appendix that details the steps to be taken in an organisational change. The diagram distinguishes between steps to be taken in reorganisations, in major organisational changes (and whether or not these are IM overarching) and other organisational changes.