Operation (works constitution law)

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The operation within the meaning of the works constitution law is regulated in §§ 1, 3 and 4 BetrVG. In the starting point it is the decisive unit for the representation of the employees by a works council.

The term “business” or “part of the business” is to be determined, among other things, according to the respective purpose of the standard. The concept of a company or part of a company under works constitution law therefore does not have to correspond to that in the sense of the Employment Protection Act (KSchG) or Section 613a BGB (company (part) transition).

Substantive organization law

Statutory order (§§ 1, 4 BetrVG)

Overview

The works constitution law of the BetrVG does not define the term "company", but presupposes it. Traditionally, a distinction is made between a “company” and a “company”. It is said that the BetrVG is basically "company-related" and not company-related. The normal case is the independent operation of a company i. S. d. Section 1 (1) sentence 1 BetrVG. A company, d. H. the legal entity can have several companies or only one company i. S. d. Section 1 (1) sentence 1 BetrVG. Exceptionally, it is assumed that several companies operate jointly , i. H. of a cross-company company that is capable of a works council (Section 1 (2) BetrVG).

The aim of the organizational law of the BetrVG is that every employee is or can be represented by a works council if possible. According to Section 4 (2) BetrVG, self-employed companies that do not employ enough workers to be able to elect a works council (are not eligible for a works council ) are assigned to the main company ( micro-enterprise ). Parts of the company are an independent company i. S. d. Section 1 (1) sentence 1 BetrVG assigned. As an exception, parts of the company are considered to be independent companies ( fiction ) if they include parts of the company that are capable of working in the works council. S. d. Section 4 (1) sentence 1 of the BetrVG are ( simple parts of the business ) and either “spatially far away from the main establishment” (Section 4 (1) sentence 1 no. 1 of the BetrVG) or “are independent in terms of their area of ​​responsibility and organization” (Section 4 (1) Sentence 1 No. 2 BetrVG) ( qualified business units ). In qualified parts of the company i. S. d. Section 4 (1) sentence 1 BetrVG, the workforce can also decide, in accordance with Section 4 (1) sentences 2-5 BetrVG, to participate in the election of the works council of the main company. Subsidiary companies that played a role according to § 4 sentence 2 BetrVG up to 2001 , “do not exist anymore”, ie, if they are not suitable for a works council, they are a main case of a very small company i. S. d. Section 4 (2) BetrVG.

The independent operation in normal cases (Section 1 (1) sentence 1 BetrVG)

The BetrVG does not define the concept of an establishment . It is controversial in science. In practice, the case law of the Federal Labor Court (BAG) is decisive: “According to the established case law of the BAG, a company is i. See § 1 I 1 BetrVG an organizational unit within which the employer continues to pursue certain work-related purposes together with the employees he employs. "A spatial unit or proximity is not decisive, but the existence of a uniform management apparatus is the essential prerequisite that there is an independent company. The uniform management must relate in particular to the main functions of the employer in social and personal matters.

  • Example: If an employer maintains several sales outlets, each with only 5 or fewer employees, but uniformly and centrally controlled, then not the individual sales outlet, but rather the entirety of all sales outlets together with the central administrative office is a "company" i. S. d. Dismissal Protection Act.

The joint operation of several companies (Section 1 (1) sentence 2, Section 1 (2) BetrVG)

According to the BetrVG there is also the possibility that a company i. S. d. BetrVG extends over several companies, d. That is, several companies jointly manage a single company. Instead of a joint operation one speaks also synonymous of Community operations or joint operation .

"According to the established jurisprudence of the Federal Labor Court ... a joint operation of several companies can be assumed if the material and immaterial resources available in a permanent establishment are combined, organized and used in a targeted manner for a uniform technical purpose and the use of human labor is controlled by a uniform management apparatus . To do this, the companies involved must have at least tacitly joined together in joint management. This uniform management must extend to the main functions of an employer in social and personal matters. The main decisions of an employer that are relevant under works constitution law include, for example, hiring, dismissals, transfers or the ordering of overtime ”.

Business units within the meaning of Section 4 (1) BetrVG

Fiction of an independent company

Section 4 (1) of the BetrVG fakes under certain conditions that a mere part of the business is considered an independent business. For this purpose, (1) a part of the company must be available that (2) is suitable for a works council and (3) meets the qualification requirements of Section 4 (1) sentence 1 no. 1 or no. 2 BetrVG. The regulation is criticized as hardly manageable in practice.

Operational part ( simple operational part )

A part of the company i. S. d. Section 4 (1) sentence 1 BetrVG must have “a minimum of organizational independence from the main company”. This is the case if “there is at least one person with management power in the unit who exercises the AG's authority to issue instructions”. It may be sufficient (depending on the individual case):

  • a "team leader";
  • an "authorized office manager";
  • a "facility manager";
  • the "head of a regional office";
  • the "regional area manager";
  • "Inspectors".
Works council ability

A part of the company is only faked as an independent company if it is capable of working on a works council, i.e. that is, meets the requirements for the election of a works council itself.

qualification

A part of the company that is eligible for a works council must either be “spatially far away from the main company” (Section 4 (1) sentence 1 no. 1 BetrVG) or “independent in terms of its area of ​​responsibility and organization” (Section 4 (1) sentence 1 no. 2 BetrVG). You only have to have one of the two qualifications. Both can also be present.

Geographically large distance from the main establishment (Section 4 Paragraph 1 Sentence 1 No. 1 BetrVG)

When a part of the company is "spatially far away" from the main company is an individual question. It does not depend on the specific distance in km, nor on the communication options, but on the accessibility of the main company by public transport - not the works council office: "According to Section 4 Paragraph 1 S 1 No. 1 BetrVG, parts of the company are spatially far away from the main company if, because of this distance, proper representation of the employees of the operating part by the works council of the main company cannot be expected "28 km can be" spatially far "if the traffic connections are poor, 70 km cannot be" spatially far "if the traffic connections are good are.

"Operating parts are iSd. Section 4 (1) sentence 1 no. 1 BetrVG spatially far away from the main company if, due to this distance, proper support for the workforce of the part of the company is no longer guaranteed by a works council based at the main company (...). The purpose of the regulation of Section 4 Paragraph 1 Clause 1 No. 1 BetrVG is to enable employees of parts of the company to be effectively represented by their own works council if, due to the spatial separation of the part of the company from the main company, personal contact is made between a local works council and it is so difficult for the employees in the operating part that the works council of the main company cannot safeguard the interests of the employees with the necessary intensity and expertise and the employees can only contact the works council under difficult conditions or works council members who are employed in the operating part, cannot come to meetings at the main plant at short notice. The decisive factor is the easy accessibility of the works council from the point of view of the employees and, conversely, the availability of the employees for the works council. A determination of the indefinite legal term based solely on distance kilometers is not possible. Rather, an overall assessment of all circumstances is to be made "

- BAG of May 17, 2017 - 7 ABR 21/15 - Rn 20

It is important that, according to the BAG, it is not important that a "social opponent", i. H. There is a supervisor with a certain decision-making authority; a mere supervisor who is entitled to accept a "part of the company" is sufficient.

Independence through area of ​​responsibility and organization (Section 4 Paragraph 1 Clause 1 No. 2 BetrVG)

To a separate works constitution unit i. S. v. Section 4, Paragraph 1, Clause 1, No. 2 of the BetrVG will only become such a part of the company under the additional condition that it is independent in terms of its area of ​​responsibility and organization (...). Relative independence is sufficient for this. Comprehensive independence is not required - otherwise the part of the business would already be an independent business within the meaning of Section 1 BetrVG. In a decision dated November 23, 2016, the BAG stated:

"The relative independence required for an independent part of the company according to Section 4 Paragraph 1 Clause 1 No. 2 BetrVG does not require a comprehensive management system, but requires that the part of the company has an independent management that is able to carry out the employer functions in to perceive the essential areas of employee participation. "

"... it is necessary that the management [on site] can make important decisions independently, especially in personnel and social matters".

Option for the workforce

According to Section 4 Paragraph 1 Clause 1 BetrVG, parts of the business are considered to be independent companies if they meet the requirements of Section 1 Paragraph 1 Clause 1 BetrVG and are geographically far away from the main establishment or are independent in terms of their area of ​​responsibility and organization. The employees of such a part of the company can informally decide by a majority of votes to take part in the election of the works council in the main company if there is no separate works council in the part of the company (Section 4 Paragraph 1 Clause 2 Half Paragraph 1 BetrVG). "The workforce of a part of the company without a works council i. S. d. Section 4 (1) sentence 1 BetrVG has three options for deciding on a representative body under collective law: It can remain without a works council because it decides neither to elect its own works council nor to be assigned to the main company; it can elect an independent works council for the part of the company, which then only represents the employees of this part of the company, or decide to participate in the election in the main company. In the first two cases, the fiction of an independent company is retained. Contrary to the opinion of the legal complaint, the independence of the business unit, as set out in Section 4 (1) sentence 1 BetrVG, is repealed by the decision on participation in the election in the main business. The law does not provide any point of reference for their view, according to which the employee representative body, which emerged from a joint election, continues to perform the works council office not only for the main company, but also in a dual function for the works constitution law as an independent part of the company. Rather, an operating part without a works council i. S. d. 4 (1) sentence 1 BetrVG to be assigned to the main company if the workforce of the part of the company decides to participate in the works council election in the main company and takes part in it. This is supported by the systematic understanding of the rules on the establishment of works councils in the Works Constitution Act and the history of Section 4 (1) sentence 2 BetrVG ”.

Several qualified parts of the company as a single part of the company

Operating parts i. S. d. Section 4 (1), first sentence, BetrVG are independent operational organizational units if they do not form a joint management structure.

But it is possible that independent parts of the company i. S. d. Section 4 (1) sentence 1 BetrVG form a single part of the business . The prerequisite for this is that they have “a common management structure”.

Organizationally separated parts of an establishment that are far removed from the main establishment can form a uniform establishment part for which only one establishment is to be selected if they are geographically close. This assumes that the part of the company is organizationally subordinate to another part of the company that is in close proximity and is managed by it.

The BAG assesses this in accordance with the principles of establishing a joint operation : As there, “the institutional uniformity of management power is essential; Without an institutionalized uniform management power, the assumption that there is a joint operation is not legally possible (...). However, it is not necessary that the management power encompasses the full scope or core of the employer's functions in the social or personal area; This means that it essentially extends to the functions of the employer in the social (cf. §§ 87 ff. BetrVG) and personal (cf. §§ 92 ff. BetrVG) matters of the Works Constitution Act. "

  • A spatial proximity i. S. v. Section 4 (1) sentence 1 BetrVG of independent business units does not in itself establish a uniform business unit .
  • The identity of the manager of two companies does not in itself constitute a joint company: accordingly, a joint manager in parts of the company does not constitute a uniform part of the company. In this way, the head of two day care centers in one city can manage them separately from one another.

Small businesses i. S. d. Section 4 (2) BetrVG

scope of application

According to § 4 Abs. 2 BetrVG "independent companies, in which no own works council can be elected due to lack of works council capacity, are assigned to the main establishment." § 4 Abs. 2 BetrVG "regulates ... not the assignment of company parts according to works constitution law, but the assignment of independent establishments, in which no separate works council can be elected due to the lack of a works council. ".

Main plant i. S. d. Section 4 (2) BetrVG

Sometimes it is difficult to determine which operating unit “main establishment” i. S. d. Section 4 (2) BetrVG is. According to the BAG, the following applies if “the employer [maintains] several other companies in addition to the company that is not suitable for a works council and ... the management of the company that is not suitable for a works council is supported in an advisory capacity by the management of one of the other companies in personnel and social matters,… [that ] this establishment main establishment i. S. v. Section 4 (2) BetrVG [is]. ”“ The geographical distance between the company and the company that is not eligible for a works council does not matter, unless it is so significant that its works council has the right of co-determination for the operations that are not suitable for the works council can no longer be practiced sensibly. In contrast, the spatial distance and purely expediency considerations cannot justify any other assignment. "

Collective agreement deviation (§ 3 TVG)

Under the prerequisites of § 3 TVG, it is possible to deviate from the statutory jurisdiction rules of §§ 1, 4 BetrVG. Usually through an allocation collective agreement. “Under the legally standardized conditions, collective agreements can be used to determine company-wide or cross-company works councils (No. 1 letters a and b), divisional works councils (No. 2) or other employee representation structures (No. 3). The agreed collective bargaining norms also apply to employees who are not members of the final union. According to Section 1 (1) and Section 3 (2) TVG, the employer's collective bargaining agreement is sufficient for the direct and compulsory effect of collective bargaining norms under works constitution law. The collective bargaining norms of the works constitution only take the place of the organizational provisions contained in the Works Constitution Act if they meet the requirements of Section 3 Paragraph 1 No. 1 to No. 3 of the Works Constitution Act. This is subject to the control by the courts for labor matters, which, when interpreting and applying the provision of indefinite legal terms used in the regulation, must take into account the constitutional requirements for the delegation of state authority to set norms to the collective bargaining parties, as well as the principles resulting from the works constitution for the formation of democratically legitimate Employee representation ".

Procedural matters

Determination procedure according to § 18 Abs. 2 BetrVG

If the order of jurisdiction is in dispute, according to § 18 Abs. 2 BetrVG a determination procedure can be clarified within the framework of a decision procedure before the courts for labor matters. Often the term “company” only becomes disputed in connection with a works council election. An election contesting procedure according to § 19 BetrVG does not exclude an allocation procedure according to § 18 Abs. 2 BetrVG.

"According to § 18 Abs. 2 BetrVG, if there is any doubt as to whether an organizational unit capable of a works council exists, u. a. every employer involved can apply for a decision from the labor court. The provision also applies when it comes to clarifying the question of whether several companies run a joint operation. The decision of the labor court can be brought about outside and without connection with a works council election. The object and aim of the procedure according to Section 18 (2) BetrVG are not only to resolve disputes about the competence of an elected or yet to be elected works council or disagreements about the scope of the works council's rights of participation and co-determination, which in part depend on the number of employees in the Operation employees depend on to decide. The procedure according to § 18 Abs. 2 BetrVG also serves to create the conditions for a (future) proper works council election. The court decision in a procedure according to § 18 Abs. 2 BetrVG therefore clarifies a fundamental preliminary question for the entire works constitution by bindingly stipulating for the time of the last oral hearing in the factual instance which organizational unit is to be regarded as the company in which a works council is elected and in which he can exercise his participation rights (...). For the admissibility of an application according to Section 18 (2) BetrVG, it does not depend on the operational organizational units in which works councils have already been elected. This clarifies the works constitution situation for the current term of office of the works councils. For future works council elections, there is still an interest in determining in which organizational unit a works council is to be elected ”.

Contestation of the election according to § 19 BetrVG

The misunderstanding of the company term can be challenged in an election contesting procedure in accordance with § 19 BetrVG within a preclusive period of two weeks at the labor court as the first instance. The misunderstanding of the operating term is usually not a reason for invalidity. If the election is not contested, the contestable but not contested election is considered effective. During its term of office, the works council is then responsible for the operational area that elected it, albeit possibly incorrectly.

Determination of the nullity of the election?

The misunderstanding of the operational term, d. H. its concrete application almost never leads to nullity. Something else may apply if a legally binding judicial clarification of the areas of responsibility in a procedure according to § 18 para. 2 BetrVG has taken place and the legal force obviously also includes the circumstances at the time of the election - d. i.e. no significant changes have occurred. The nullity of a works council election can also be asserted as a preliminary question in a judgment procedure if there is an interest in legal protection “by everyone” (employee).

See also

Key decisions

  • on § 4 Paragraph 1 Clause 1 No. 1 ("spatially far away from the main operation"): BAG of 17.05.2017 - 7 ABR 21/15 = NZA 2017, 1282 [1]
  • to § 18 Abs. 2 BetrVG (determination procedure): BAG of 23.11.2016 - 7 ABR 3/15 = NZA 2017, 1003 = AP No. 65 to § 19 BetrVG 1972 = EzA § 1 BetrVG 2001 No. 11

literature

  • Erfurt Commentary / Koch, 16th ed. 2016, BetrVG, § 1 and § 4
  • Richardi, BetrVG, 15th edition 2016, § 1 and § 4
  • Schaub / Koch, Labor Law Manual, 17th edition 2017, § 211

Individual evidence

  1. ↑ BAG of December 9, 2009 - 7 ABR 38/08 - juris Rn. 22 = NZA 2010, 906 = AP No. 19 on § 4 BetrVG 1972; BAG of January 18, 2012 - 7 ABR 72/10 - juris Rn. 24 = EzA § 1 BetrVG 2001 No. 9
  2. ↑ See Kleinebrink / Commandeur, NZA 2015, 853 (854) with additional references
  3. ↑ BAG of August 26, 1971 - 2 AZR 233/70 - EzA § 23 KSchG No. 1 Ls. - This also applies to the BetrVG.
  4. ↑ BAG of June 9, 2011 - 6 AZR 132/10 - juris Rn. 16; also BAG of January 18, 2012 - 7 ABR 72/10 - juris Rn. 25 = EzA § 1 BetrVG 2001 No. 9
  5. ↑ Erfurt Commentary / Koch, 16th ed. 2016, BetrVG, § 4 Rn. 4th
  6. ↑ BAG of July 21, 2004 - 7 ABR 57/03 - juris Rn. 22 = AP BetrVG 1972 § 4 No. 15; BAG of February 19, 2002 - 1 ABR 26/01 - juris Rn. 17 = NZA 2002, 1300 = AP No. 13 to § 4 BetrVG 1972 (to § 4 BetrVG old version)
  7. ↑ BAG of February 19, 2002 - 1 ABR 26/01 = NZA 2002, 1300 (1301)
  8. ↑ BAG of May 29, 1991 - 7 ABR 54/90 - juris Rn. 28 = NZA 1992, 74 = AP BetrVG 1972 § 4 No. 5
  9. ↑ BAG of February 19, 2002 - 1 ABR 26/01 - juris Rn. 3 i. V. m. 18 = NZA 2002, 1300 = AP No. 13 to § 4 BetrVG 1972
  10. ↑ BAG of December 9, 2009 - 7 ABR 38/08 - juris Rn. 28 = NZA 2010, 906 = AP No. 19 to § 4 BetrVG 1972
  11. ↑ LAG Berlin-Brandenburg of September 23, 2010 - 25 TaBV 2776/09 - juris Rn. 37
  12. ↑ BAG of May 9, 1996 - 2 AZR 438/95 - NZA 1996, 1145 (1147) <Weight Watchers>
  13. ↑ BAG of January 29, 1992 - 7 ABR 27/91 - juris Rn. 5 = NZA 1992, 894 = AP No. 1 to § 7 BetrVG 1972
  14. ↑ Section 1, Paragraph 1, Sentence 1, BetrVG: "As a rule, at least five permanent employees entitled to vote, three of which are eligible"
  15. ↑ BAG of May 7, 2008 - 7 ABR 15/07 - juris Os. = AP BetrVG 1972 § 1 No. 19
  16. ↑ BAG of December 15, 2011 - 8 AZR 692/10 - juris Os. = NZA-RR 2012, 570 <affirmed at 300 km>
  17. ↑ Erfurt Commentary / Koch, 16th ed. 2016, BetrVG, § 4 Rn. 3 mw N.
  18. ↑ See Schaub / Koch, Arbeitsrechts-Handbuch, 17th edition 2017, § 211 Rn. 15 mwN
  19. ↑ BAG of July 21, 2004 - 7 ABR 57/03 - juris Rn. 22 = AP BetrVG 1972 § 4 No. 15
  20. ↑ BAG of November 23, 2016 - 7 ABR 3/15 - Rn. 64 = NZA 2017, 1003 = AP No. 65 to § 19 BetrVG 1972 = EzA § 1 BetrVG 2001 No. 11
  21. ↑ Schaub / Koch, Arbeitsrechts-Handbuch, 17th edition 2017, § 211 Rn. 16
  22. ↑ BAG of September 17, 2013 - 1 ABR 21/12 - juris Rn. 19 f. = NZA 2014, 96
  23. ↑ BAG of May 29, 1991 - 7 ABR 54/90 - juris Rn. 26 = NZA 1992, 74 = BAGE 68, 67 = AP No. 5 to § 4 BetrVG 1972
  24. ↑ BAG of May 29, 1991 - 7 ABR 54/90 - juris Rn. 26 = NZA 1992, 74 = BAGE 68, 67 = AP No. 5 to § 4 BetrVG 1972
  25. ↑ BAG of February 19, 2002 - 1 ABR 26/01 = NZA 2002, 1300 (1302); Richardi, BetrVG, 15th edition 2016, § 4 marginal no. 13; Besgen, in: Rolfs / Giesen / Kreikebohm / Udschning, BeckOK Labor Law (as of September 1, 2015), BetrVG § 4 Rn. 9 aE
  26. ↑ BAG of May 29, 1991 - 7 ABR 54/90 - juris Rn. 25 = NZA 1992, 74 = BAGE 68, 67 = AP No. 5 to § 4 BetrVG 1972
  27. ↑ BAG of May 29, 1991 - 7 ABR 54/90 - juris Ls. = NZA 1992, 74 = AP BetrVG 1972 § 4 No. 5; also Erfurt Commentary / Koch, 16th ed. 2016, BetrVG, § 4 Rn. 3; Richardi, BetrVG, 15th edition 2016, § 4 marginal no. 29
  28. ↑ See BAG of January 17, 2007 - 7 ABR 63/05 - juris Rn. 18 = NZA 2007, 703 = AP No. 18 to § 4 BetrVG 1972 = BAGE 121, 7
  29. ↑ See BAG of January 17, 2007 - 7 ABR 63/05 - juris Rn. 18, 25 = NZA 2007, 703 = AP No. 18 to § 4 BetrVG 1972 = BAGE 121, 7
  30. ↑ BAG of September 17, 2013 - 1 ABR 21/12 - juris Rn. 27 = NZA 2014, 96 = MDR 2014, 287
  31. ↑ BAG of January 17, 2007 - 7 ABR 63/05 - juris Rn. 20 = NZA 2007, 703 = AP BetrVG 1972 § 4 No. 18
  32. ↑ BAG of January 17, 2007 - 7 ABR 63/05 - juris Ls. = NZA 2007, 703 = AP No. 18 to § 4 BetrVG 1972 = BAGE 121, 7
  33. ↑ LAG Berlin-Brandenburg from September 23, 2010 - 25 TaBV 2776/09
  34. ↑ BAG of November 18, 2014 - 1 ABR 21/13 - juris Rn. 26 = NZA 2015, 694
  35. ↑ BAG of August 13, 2008 - 7 ABR 21/07 - Rn. 16 = NZA-RR 2009, 255