AI – from algorithm to decision: The position of the works council in the Netherlands

In the Netherlands, the rise of AI has also changed the role of the works council (Ondernemingsraad). In reality, many AI projects start without asking or even informing the works council. This is a problem, because the works council actually has important legal rights in these situations.

Articles 25 and 27 WCA: also applicable to AI

AI is often seen as just a technical tool, but it has a direct impact on work relationships, such as who is selected, how people are evaluated, career opportunities, independence, and workload. The Dutch Works Councils Act (WCA) – in Dutch, the Wet op de ondernemingsraden – is clear: if a company introduces a big new technology, the works council has the right to give advice (adviesrecht, Article 25 WCA). If AI is used to monitor or evaluate employees, the works council must give formal approval (instemmingsrecht, Article 27 WCA).

Risks in practice

Still, in the Netherlands, the works council often only gets involved after the AI system is already being used. Employees might already have been judged or chosen by an algorithm. This is risky, because AI learns from data that is often not neutral. 

Some possible risks are:

• Discrimination – for example, in screening CVs or predicting sick leave.
• Privacy – using sensitive data can cause data leaks or create profiles that can be traced back to individuals.
• Liability – mistakes are still the responsibility of the organisation, not the AI system.

Privacy, transparency, and the human factor

The General Data Protection Regulation (GDPR) is also important. People have the right to have a human look at decisions made by algorithms that affect them. Human involvement helps to make sure decisions are fair, and helps to prevent people from being unfairly excluded or discriminated against by an algorithm. This is something the works council can ask questions about.

Timely involvement

For works councils in the Netherlands, it is very important to be involved early. What can the works council do in practice? For example, they can ask which AI projects are happening, what the effects are for employees, and what other options have been considered. They can also ask about risk assessments, ethical guidelines, and training if jobs change or disappear because of AI.

In summary

The European AI Act requires organisations to use AI carefully and openly. This also affects training policies, so the approval of works councils is needed.

In the Netherlands, AI is becoming an important part of employee participation. The works council has both the responsibility and the right to make sure that work stays fair and respectful in a digital world.

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Maaike Koot is a lawyer at TK and part of the international corporate employment law team. Maaike advises on reorganisation and dismissal, (collective change of) employment conditions, sickness and reintegration, temporary employment law and management agreements.