Operational change

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An operational change occurs when an enterprise or part of an enterprise is shut down, restricted or merged with another enterprise, if an enterprise is split up or if the operational purpose or the operational organization is changed or fundamentally new working methods are introduced. A company change triggers different and varying degrees of co-determination rights in companies in which a works council exists, which make up the core area of ​​economic co-determination of the works council according to the Works Constitution Act . This includes information obligations vis-à-vis the works council and, under certain conditions, also advisory obligations as well as the obligation to negotiate with the works council about a balance of interests and to agree a social plan .

Legal catalog of operational changes

The law does not define the concept of operational change. The Works Constitution Act , however, formulates a catalog of the most varied of measures in Section 111 of the Works Constitution Act, each of which, taken individually, is considered an operational change, but often occurs as a combination or mixed form of these catalog facts:

  1. Restriction and shutdown of the entire company or of essential parts of the company,
  2. Relocation of the whole company or of essential parts of it,
  3. Merger with other companies or the division of companies,
  4. fundamental changes to the business organization, the business purpose or the business facilities,
  5. Introduction of fundamentally new working methods and manufacturing processes.

For all operational changes, as mentioned in § 111 BetrVG, the term of the enterprise , as it is based on the Works Constitution Act, is of decisive importance.

Co-determination of the works council

If the implementation of the operational change has already started and a works council has only been elected afterwards, it has no co-determination rights. If, for example, due to a closure decision, existing lease and delivery contracts were terminated at the planned closure date and a works council was then elected, this must be heard in accordance with Section 102 BetrVG on the terminations of the employment relationships still to be pronounced. Co-determination rights according to §§ 111 ff. BetrVG and thus also social plan entitlements or other compensation entitlements of the employees are excluded.

Company size

Small businesses with up to 20 employees are exempt from economic participation from the outset. Changes to operations can also be carried out by the employer without the involvement of the works council. The works council's rights of co-determination in personnel matters (e.g. in the case of transfers or regrouping as a result of the change of company, Section 99 BetrVG) and the works council's right to be heard in the event of dismissals ( Section 102 BetrVG) remain unaffected. However, a company change is subject to co-determination if a company maintains several companies, each of which does not have more than 20 employees, but a company change is intended as part of a measure that affects all (or more) individual companies, if of this measure at least more than 20 employees are affected.

Major disadvantage

The law requires that the change in the company must lead to "significant disadvantages" for the workforce or significant parts of the workforce. Since, however, according to the case law, it is already sufficient that such disadvantages may occur and that in the cases mentioned by law a “substantial disadvantage” is always faked, this criterion is practically of little importance.

Considerable parts of the workforce

It is often disputed whether the requirement is met that “significant parts of the workforce” are affected by the change in company. When determining the threshold number of employees affected by the measure, the Federal Labor Court uses the values specified for mass layoffs in Section 17 of the KSchG. In contrast to the mass dismissal notification, it is neither important that the employees concerned are all dismissed, nor that they are affected by the company change within the monthly period specified in § 17 KSchG. It is sufficient that they could suffer disadvantages as a result of a uniform business decision that leads to a change in the company. Therefore, so-called wave layoffs, in which employees are laid off in several phases over a longer period of time, are covered by the regulation and must be added together to calculate whether the threshold values of Section 17 KSchG have been reached.

Delimitation of the transfer of operations

However , if there is a transfer of business in accordance with Section 613a of the German Civil Code (BGB ) without further measures to change the business, the works council does not have any co-determination rights. According to case law, in this case the rights of the employees are comprehensively protected by Section 613a of the German Civil Code, so that there is no change in the company. Only if the measure is not limited to changing the business owner, but is linked to other measures in the catalog of Section 111 BetrVG, is there a change in business.

Legal consequences

If there is a planned change in the company, the law attaches different legal consequences to this fact, whereby the rights of the works council are considerably restricted in companies with a tendency to change .

Duty to provide information and advice

First of all, the employer must inform the works council in a timely and comprehensive manner (by submitting existing documents, reports, calculations, plans) . This obligation to notify already exists when the first thoughts about a change in the company are made. If the works council is only informed when “everything has been decided”, the employer violates his duty to inform, because this duty is intended to ensure that the works council can exert influence at an early stage in the planning. In companies with more than 100 employees (with the exception of companies with a tendency according to § 118 BetrVG), the economic committee must be informed or consulted with it according to § 106 BetrVG.

Balance of interests

The employer must then try to reach an agreement with the works council on a balance of interests . In this reconciliation of interests, an agreement is laid down on the whether and how (i.e. including the time) of the planned operational change. If a company agreement does not succeed, the employer must continue this attempt at least until the attempt ultimately also fails in the conciliation body to be called . If an agreement is not achieved there either, if the negotiations on the reconciliation of interests also ultimately fail in the conciliation office, the employer is free to implement the operational change as he had communicated it to the works council. The balance of interests is therefore not enforceable. The arbitration board is not authorized to curtail the exclusive decision-making authority of the employer with regard to whether and how to change the company by means of a ruling. However, if the employer does not try to reach an agreement with the works council right through to the arbitration board, the employees affected by the change in company are entitled to payment of severance payments by the employer (see: Compensation for disadvantages ). However, after the European Court of Justice (ECJ) ruled in a decision of January 27, 2005 that the EC directive on mass dismissals should be interpreted in such a way that the decision of dismissals before the conclusion of the consultations with the works council leads to the ineffectiveness of the dismissal , the previous case law should of the German labor courts, which had previously considered the dismissals to be effective in these cases and only referred the employees concerned to the judicial assertion of disadvantage compensation claims (severance payments).

Enforceable social plan

The social plan , which is to be agreed between the employer and the works council, does not regulate whether and how the company change is required, but rather the compensation of the economic disadvantages which the employees who are affected by the company change are likely to suffer (for more details see: social plan ). Since, in contrast to the reconciliation of interests with regard to a social plan to be agreed, the decision of the conciliation body replaces the agreement between the employer and the works council on the establishment of a social plan ( Section 112 (4) BetrVG), the social plan is approved by the works council (if the conditions for a change of company exist, such as described above) enforceable. As a rule, there is an enforceable entitlement to a social plan if the threshold values of Section 17 KSchG are reached as a result of the change in company. Only in the (exceptional) case that a change in operations consists solely in the reduction of staff, the significantly higher threshold values ​​of the ( Section 112a BetrVG) are relevant .

See also:

Individual evidence

  1. C-188/04 .
  2. "Council Directive 98/59 / EC of July 20, 1998 on the approximation of the laws of the Member States on collective redundancies"