Participation is mandatory by law at every higher education institution, university of applied sciences and university. The law that lays down the rules and rights of participation is called the Higher Education and Scientific Research Act (WHW). In some institutions, works councils are also subject to the Works Councils Act (WOR).
The law stipulates that each level at a university or university of applied sciences has a corresponding participation council. At the top is the Central Council or University Council, below which each faculty or domain has a faculty council or sub-council, and each programme has a programme committee. Each of these councils is composed of both staff and students (at some institutions, the central council and the faculty council are “shared”. In that case, there is a separate student council and a separate works council). Students and staff generally have the same rights and obligations, but in some respects these rights differ. For example, only students have the right to have input regarding the student charter, and only lecturers and staff have a say in matters concerning the workplace.
Participation rights
Broadly speaking, participation has five types of rights:
* Right of consent: As long as the council does not give its consent to a plan, it cannot go ahead. The minimum level of consent required by the council is described in the WHW. However, there are enough institutions that grant their participation representatives more rights of consent than is required by law. Therefore, always find out exactly what you do and do not have the right of consent over.
* Right of advice: The council has the right to provide advice. The board may disregard this advice, but cannot do so without giving proper justification.
* Right to information: The council has the right to be informed about the state of affairs within the institution. The right to information goes much further than the board often thinks: you are entitled to all the information you need to be able to function in a reasonable manner.
* Right of initiative: The council has the right to propose initiatives, to which the Executive Board must respond.
* Right to support: The council must be supported in its work. At the central level, this often takes the form of an (administrative) secretary, but at any level it can translate into paying for council members to attend relevant training courses.
This text first discusses the rights of participation in general and then indicates the basis and implementation of the participation rights per administrative layer for each system. The participation rights are implemented in the same way at both the decentralised level and the programme level.
Participation rights at the central level
The central council or student council has a major responsibility as a discussion partner for the Executive Board at the central level. In some cases, the participation body must be asked for permission before the proposed policy can be implemented. The participation body can also always advise the Executive Board and in this way exert influence and raise issues. The areas in which the participation body has a say vary per system. In a shared system, only policies that directly affect the representative bodies are discussed. For example, the student council mainly discusses student affairs and the works council discusses employee affairs. In an undivided system, students and staff discuss both student affairs and employee affairs together.
Right of consent at central level
The central participation council has the right of consent on a number of points. The right of consent means that the Executive Board needs the approval of the participation body in order to implement a decision. A co-determination body gives its consent if at least half of its members agree. At central level, the participation body has the right of consent on:
- The student charter
- The institutional plan
- The design of the quality care system
- The quality assessment policy
- The administrative and management regulations
- The participation regulations
- The main points of the budget
- The rules in the area of working conditions
- The choice of participation system
- The profiling fund
(Unsolicited) right to advise at central level
The right of the representative body to advise includes both giving solicited and unsolicited advice. The right to give solicited advice means that the central board must first formally request advice from the representative body before adopting certain regulation. The central administration must request advice at a time when the advice can have a significant influence on the decision-making process. If the administration does not follow the advice of the participation body, it must substantiate its decision. The right to give unsolicited advice means that the participation body may advise the administration at any time on any educational or student matter. This advice does not have to be followed. The central council or student council has the right to advise on: the budget, institutional tuition fees, matters concerning the continued existence and proper functioning of the institution, general personnel and appointment policy, and the rules for refunding statutory tuition fees if a student discontinues their studies during the year.
Right to information and right of initiative at central level
Among other things, the representative body at central level has the right to be informed. This means that the central management must provide the representative body with all information in a timely manner. This relates to all information that the representative body needs in order to perform its tasks properly. The representative body at central level also has the right to take the initiative at any time to make proposals on all matters. The board is obliged to respond to a proposal from the participation body. There is also a reinforced right of initiative for the central participation body, which means that the central participation body may invite the Executive Board twice a year on the basis of an agenda drawn up by the co-determination body.
Participation follows control
If a particular decision has already been discussed with the participation body at a higher level, then the participation body at a lower level cannot also exercise its co-determination rights on this matter. Sometimes the board tries to transfer a regulation to which the participation body has the right of consent to another level because the co-determination rights are less far-reaching. This is not permitted. If the Executive Board has transferred management tasks to the faculty board, the corresponding participation rights are transferred from the central participation body to the decentralised council. This is regulated for universities in Section 9.37(2) of the Higher Education and Research Act (WHW) and for universities of applied sciences in Section 10.25(1) of the WHW.
Co-determination rights at faculty level
For universities, the board at a faculty is formed by a dean or a faculty board. It is therefore possible to choose between a board consisting of one person or a board with several members. The WHW contains little information about faculties at universities of applied sciences. Article 10.3a of the WHW states that the Executive Board may stipulate in the management and administrative regulations that one or more faculties/organisational units be established. The WHW determines the minimum rights that undivided participation must have at the decentralised level. More rights may be granted in the faculty regulations.
Right of consent at faculty level
The WHW does not specify the rights of decentralised undivided co-determination at universities of applied sciences. The law states that decentralised co-determination at universities of applied sciences has the same right of consent and right of advice as central co-determination, insofar as it concerns matters that fall under the responsibility of the faculty board. The WHW stipulates that, in addition to the rights derived from the rights of the central council within an undivided system, decentralised co-determination at universities has specific consent rights in relation to two matters: the faculty regulations and the OER.
Right to advise at faculty level
Decentralised co-determination within an undivided system of both universities and universities of applied sciences has, just like central co-determination, the right to give both solicited and unsolicited advice. In addition, more explicit advisory rights may be laid down in the faculty regulations.
Right to information and initiative at faculty level
Decentralised co-determination within an undivided system of both universities and universities of applied sciences has the right to information and the right of initiative.
Shared system of participation at faculty level
Up to now, only the rights of co-determination within an undivided system at decentralised level have been discussed. In the shared system, there is a decentralised student council and a works council. The rights of consent, advice, information and initiative correspond to those of undivided decentralised co-determination. There are few legal provisions governing the faculty student council. The rights of the faculty student council must be at least equivalent to those of the decentralised council. The rights of the decentralised student council are laid down in the regulations of the educational institution.
Assessor at faculty level
Within a multi-headed faculty board at a university, an assessor may be appointed on the basis of Article 9.12(2) of the WHW. An assessor is a student from the faculty in question. The student is given the opportunity to attend meetings of the faculty board. The student also has an advisory vote in the meeting. The manner in which the advisory vote is exercised is laid down in the administrative and management regulations. Please note that no assessor can be appointed if the faculty is led by a dean alone. The WHW does not contain any provisions for assessors at universities of applied sciences. Nevertheless, a university of applied sciences may appoint an assessor by laying this down in its administrative and management regulations.
Participation at the programme level
The programme committee is not a formal representative body, but serves only as an advisory body to the study programme board. The programme committee always consists of a combination of students and staff. The powers of the programme committee are set out in Section 9.18 of the WHW. In addition to providing advice, the programme committee can exercise the right to information and the right of initiative. How the right to advise works is described in Section 9.35 of the WHW. The preamble and subsections b and c apply to the programme committee. The participation regulations or the regulations of the programme committee must contain further specifications about the right to advise. The law does not provide further specifications regarding the right to advise for universities of applied sciences. Article 10.3 c of the WHW states that further rules regarding the right to advise must be laid down in the administrative regulations.
Special educational institutions
Special universities and universities of applied sciences funded by the state have the option of deviating from the co-determination regulations. This is based on the specific nature of the special institution, in particular its religious or philosophical nature. This applies to Radboud University (Catholic), VU University Amsterdam (Protestant Christian) and Tilburg University (Catholic). In addition, all colleges of higher education have a special basis, but in practice, colleges of higher education do not use that basis to deviate from the WHW. The exemption regulations for special universities and universities of applied sciences differ from each other. A special university must incorporate all the rules from the WHW concerning employee participation into its structural regulations. This is mandatory insofar as the nature of the special university does not preclude this, in the opinion of the executive board (Section 9.51(2) WHW). The Minister of Education, Culture and Science may lodge an objection within three months of receiving the structural regulations if he considers that the Executive Board has not reasonably invoked the special nature of the university (Section 9.51(3) of the WHW). All universities of applied sciences have a special basis. With regard to universities of applied sciences, the Minister of Education, Culture and Science may, at the request of the institution’s board, grant an exemption from the statutory provisions of the WHW. This request must be based on grounds related to the religious or philosophical beliefs of the university of applied sciences. In addition, the university of applied sciences must demonstrate that the request is supported by a two-thirds majority of both students and staff. The Minister must revoke any exemption granted if the grounds for the exemption no longer apply. In other words, if the request is no longer supported by a two-thirds majority. Every five years, the executive board informs the Minister about the status of the grounds for the exemption and the support for it.
Disputes
It sometimes happens that the representative body and the board disagree about the implementation of a particular right. For example, the board may be of the opinion that a council only has the right to advise in the event of budget cuts, while the council believes that it has the right of consent. In such a case, the disputes committee can be called upon to determine who is right. Do not hesitate to contact the disputes committee: the representative body is often right.
The law relating to disputes is described in Articles 9.39 and 9.40 for universities. For universities of applied sciences, the law describes this in Article 10.26.
More information about representative body disputes can be found here.