A works council is an institutionalized employee representation in companies, companies and groups. In technical terms, the word designates the co-determination body under the works constitution; in colloquial language, an individual member of the body is often referred to as a works council.
How strongly the tasks of the works council are anchored in law varies greatly in the individual countries. In Germany and Austria, the works council is an organ for co-determination and representation of employee interests, which also participates in company decisions. In Switzerland, however , its position is weaker. The legal basis in Germany is the Works Constitution Act , according to which employees in a company with at least five permanent employees who are entitled to vote are entitled to elect a works council.
The co-determination must be distinguished from the co-determination by employee representatives on supervisory boards of corporations . The scope of the German Works Constitution Act extends to companies under private law . A staff council is responsible for public services and administrations . Enterprises of religious communities and their charitable or educational institutions are also excluded . A so-called employee representative body has been appointed to allow employees to cooperate here on the basis of church legislation.
European works councils are responsible for companies with more than 1,000 employees in cross-border companies in the European Union .
The rights and obligations of the works council as a company representation of the interests of the employees were codified for the first time in the Weimar Republic in the Works Council Act of 1920. After the Second World War they were regulated in the Works Constitution Act (BetrVG) passed in 1952 . It was extensively amended in 1972 as the Works Constitution Act in 1972 and subsequently amended several times in smaller parts. Further rights of the works council result from the Dismissal Protection Act (rights of the works council in the event of dismissals) or the Labor Court Act ( the works council's ability to participate in labor court proceedings ).
In the administrations and authorities of the public service, the staff representation laws of the federal and state governments regulate the rights of the staff council as a representation of the interests of employees and civil servants .
For the first time with the law on the establishment of works councils of May 15, 1919, the First Republic gave Austrian works councils a legal status, which was updated with the Works Council Act of March 28, 1947 and today in the Labor Constitution Act of December 14, 1973 (on January 16 , 1947) 1974 entered into force) forms the current legal basis for the powers of the Austrian works council (§§ 50–122) and the European works council (§§ 171–203). The last major changes were made in 2011.
Like the German works council, its Austrian counterpart also has graduated rights of participation in social, personal and economic matters, which, according to the Viennese sociologist Franz Traxler, are less pronounced, for example the subjects requiring approval (Section 96) are much more limited than those of the German works constitution .
In Switzerland there are no works councils in the form in Germany or Austria, but so-called employee representatives with significantly fewer rights.
The délégués du personnel are to be regarded as the French equivalent of the works council . The Comité d'entreprise (CE) is often wrongly named as the counterpart to the German works council. However, this is not a pure employee body. The chairman of the Comité d'entreprise is the manager. In Germany, a Comité d'entreprise would be banned as a harmony association. The Comité d'entreprise is an independent and legally competent entity. It has its own budget to finance its expenses (approx. 1% of the company's turnover). Its rights are limited to information and consultation rights, and it also has a social budget of variable amounts for social and cultural activities. The union delegates ( Délégués syndicaux ) appointed by the unions from within the workforce have a monopoly on negotiating company agreements .
In 1850 four social liberal entrepreneurs joined forces in Eilenburg to introduce factory regulations. This voluntary agreement provided, among other things, for the election of a workers' committee in each of the factories and a factory council elected by these committees. The mastermind was the calico printer owner Carl Degenkolb , who had previously failed in the Frankfurt National Assembly with a draft law to introduce factory committees . Statutory workers' committees were first introduced in Germany in mining companies in Bavaria in 1900 and in Prussia in 1905 . The Patriotic Auxiliary Service Act of 1916, passed during the First World War , provided for the introduction of permanent workers' committees in all companies with at least 50 employees that were important for the war economy . They only had advisory and hearing rights, but if their suggestions were not followed, they could appeal to an equal arbitration committee with a neutral chairman, whose ruling the entrepreneur had to submit. In the revolution of 1918/1920 a broad council movement formed . The result of this is the three-tier council system codified in Article 165 of the Weimar Constitution , which provided for 1. factory workers' councils, 2. district workers' councils structured according to economic areas, and 3. a Reich workers' council. However, only the works council prescribed by the Works Council Act passed on February 4, 1920 for all companies with at least twenty employees was of practical relevance . In the Weimar Republic, under the catchphrase “ economic democracy ”, the ADGB trade unions discussed expanding the competences of the works councils for production control and thus initiating a socialist transformation. However, this concept failed in the Great Depression from 1929.
Under National Socialism , the Labor Code of 1934 prohibited all works council activities. The works councils were replaced by so-called trust councils .
With the Allied Control Council Act No. 22 of April 10, 1946, works councils were once again permitted in Germany. The first Works Constitution Act (BetrVG 1952) was passed on October 11, 1952. It was in the tradition of the Works Council Act of 1920, the basic ideas of which were largely adopted. In 1972, following a controversial social discussion, a fundamental amendment to the Works Constitution Act (BetrVG 1972) was carried out, which was reformed again in 2001.
Among other things, the working and organizational principles of the works councils were changed. The electoral process has been simplified, an "equality quota" (minimum seats for the sex in the minority, see election regulations of the Works Constitution Act § 15 WO) has been introduced, the separation between workers and salaried employees has been abolished, the exemption thresholds for works council members have been lowered and the works council is involved in the introduction of group work as well as the involvement of consultants for operational changes.
General provisions of the German Works Constitution Act
The Works Constitution Act (BetrVG) grants employees of companies of a certain size the right to elect a works council . At least five employees who are entitled to vote must be permanently employed, three of whom must also be elected to the works council. This also applies to joint operations by several companies. ( § 1 BetrVG) The wording in § 1 of the law that “works councils are elected” in companies with this minimum number does not mean that they are actually elected in all of these companies. It grants employees the right to elect a works council, but the initiative must come from them (or their trade unions) without the employer being allowed to hinder them.
The works council election is initiated and carried out by an electoral committee. In companies without a works council, the electoral board in companies with several companies is appointed by the general works council (GBR) or the group works council (KBR). If these bodies do not exist or if they remain inactive, a works meeting appoints the electoral board. Either three employees of the company who are entitled to vote or a trade union represented in the company may invite to the works meeting.
Employees in the sense of the works constitution are workers and employees who are employed in the company, in the field , with teleworking or working from home (if this is mainly done for the company). However, executives are not included.
If there are several works councils in a company, a general works council must be set up. In corporations , group works councils can also be set up ( Section 54 BetrVG), which are responsible for dealing with matters that affect the group or several group companies and cannot be regulated by the individual general works councils within their company ( Section 58 BetrVG).
The employer and works council should work together for the benefit of the employees and the company, in compliance with the applicable collective agreements and in cooperation with the represented trade unions and employee associations.
All employees of the company who have reached the age of 18 are entitled to vote without having to wait a while. Adult trainees also have the (active and passive) right to vote in the works council election because they are also considered employees in this respect ( Section 5 (1) sentence 1 BetrVG). Temporary workers have the right to vote if they are employed in the company for more than three months. Senior executives have neither the active nor the passive right to vote, there is a separate representative for this group, the speaker committee .
Eligible (passive right to vote) are all those entitled to vote who have been with the company for six months or who have mainly worked from home for the company during this period.
The term of office of the works council is four years. Most recently, the regular works council elections took place from March 1 to May 31, 2018. In companies that still do not have a works council, one can be elected at any time.
A new works council has to be elected after two years if the number of regular employees has increased or decreased by 50% (but at least by 50).
The members of works councils exercise their office free of charge as an honorary post . However, employers must release them to the extent necessary for works council work without reducing their wages ( Section 37 BetrVG). They must not be disturbed or hindered in the performance of their work ( Section 78 BetrVG) and, according to Section 15 KSchG , they can generally only be terminated for extraordinary reasons. Extraordinary termination also requires the consent of the works council in accordance with Section 103 BetrVG or, if the works council does not expressly consent, the replacement of the consent by the labor court upon application by the employer. Otherwise the termination is ineffective.
The general tasks are regulated in § 80 BetrVG. The works council has to deal with the interests of the employees and to apply for measures in the interests of the employees and to take up their suggestions.
He has to ensure that the standards applicable in favor of the employees are observed, he has to promote measures of occupational health and safety and corporate environmental protection .
Particularly, the works council has to take care of disadvantaged workers and the integration of severely handicapped promote foreign and older workers as well as the equality promote gender equality and work-life balance.
Finally, one of the general tasks is to prepare the election of a youth and trainee representative . To this end, he appoints an electoral board that carries out the election.
Since July 1, 2008, Section 2 (3) of the Legal Services Act has allowed the discussion of legal questions that require participation between the works council and the employees concerned.
Consultation of an expert
The works council can call in experts after a more detailed agreement with the employer ( Section 80 (3) BetrVG).
Experts should advise the works council on issues in which the works council lacks the necessary expertise and help it to draw up works agreements . To claim aid of an expert can be made in the following areas as: computer, difficult working models , assessment services, service fee , balance of interests / redundancy scheme , setting tests , balance analysis and other fields. The expert activity is not limited to supporting the works council in individual issues. It can also relate to topics that require long-term advice. When it comes to the question of necessity, the works council has a margin of appreciation that is only accessible to a judicial review to a limited extent.
Right to information
The works council generally has the right to be informed by the employer about all circumstances, knowledge of which is appropriate or necessary for the fulfillment of its statutory tasks.
In particular, it is about the personnel planning altogether, technical and organizational changes as well as personnel individual measures - such as setting , rearrangement, displacement and termination to comprehensive and timely information -.
Company or trade secrets that have been expressly designated as confidential by the employer, as well as personal data of employees, must be kept secret by the works council and its members. Apart from this exception, the works council can pass on its information to the workforce and discuss it publicly.
Right to advice
Here, the employer must not only inform the works council, but also consult with it - such as when building technical facilities, changing work processes, promoting vocational training, etc. Measures taken by the employer in matters requiring advice do not become ineffective if the employer does not observe the right to advice has or has not followed the advice of the works council.
Who works as his works constitution would duly fulfill tasks and duties that is required to participate in training.
A works council member who stays away from a required training measure commits a gross breach of duty.
Training measures in accordance with Section 37 (6) BetrVG
Section 37 (6) BetrVG speaks of necessary training for the works council. In principle, this involves training measures, the content of which is related to the statutory tasks of the works council.
If more than 50% of the training content is considered necessary, the entire training measure is also considered necessary.
The imparting of knowledge is considered necessary if it is necessary, taking into account the specific circumstances in the company and works council, so that the works council can properly and professionally fulfill its current and future tasks.
In addition, training within the meaning of Section 37 (6) BetrVG is required if the knowledge imparted is related to the statutory tasks of the works council and there is a specific need for training for current company or works council-related reasons.
Training events for imparting basic knowledge can regularly be regarded as necessary, so that no special explanation of the necessity is considered necessary.
The following training measures are seen as necessary according to case law, but are not listed here exhaustively:
- general works constitutional basics,
- general basic knowledge of labor law ,
- Knowledge transfer about performance remuneration (piecework or performance assessment),
- general wage structure,
- Occupational safety , health , occupational safety ,
- Working time (especially when introducing a new working time model ),
- Organization of works meetings for (newly elected) works council chairmen,
- Knowledge of the General Equal Treatment Act (AGG)
- VDU work, VDU work regulations ,
- personal participation rights at u. a. Recruitment , termination ,
- current case law,
- Severely handicapped rights ,
- Collective bargaining law , provided there are collective agreements in the company,
- Introduction of telework ,
- Rhetoric , conducting discussions, conducting discussions and negotiations for works council members who mainly negotiate with the employer ,
- EDP (especially when introducing new hardware and software),
- BR elections (only for electoral board members),
- Bullying in the workplace (if necessary, explaining the relevant conflict cases to justify the necessity)
- Every works council member, especially newly elected or new works council members, can take part in seminars that impart basic knowledge of labor and works constitution law.
The same applies if the company is bound by collective bargaining agreements or collective agreements apply and the relevant seminar provides knowledge of collective bargaining law.
Committee or works council members who take on special tasks by means of a works council resolution are entitled to the necessary training measures to fulfill these tasks, as do works council chairmen and deputies, as well as exempt works council members ( Section 38 BetrVG).
Substitute members are also entitled to participate in training events if they are frequently called upon to work in the works council, for example in larger works council bodies or if they are represented for a longer period of time, e.g. B. due to parental leave of the full member.
Training measures according to § 37 Abs. 7 BetrVG
In contrast to the collective entitlement under Section 37 (6) BetrVG, the entitlement to training under Section 37 (7) of the Works Council Act relates to the entitlement of an individual works council member.
Here, too, the corresponding works council resolution is required to participate in the training.
Furthermore, proof of the special necessity of the training content is not absolutely necessary here. The knowledge to be imparted at the training event should generally be related to the work of the works council.
The training measures to be taken must be perceived by the highest labor authority as suitable, as is the case above all with socio-political , socio-political , economic and civic issues.
Can be considered suitable, for. B .:
- Human resources, personnel development,
- Social security law,
- EU law,
- Domestic market,
- Labor market policy
Depending on the company and works council situation, it can also happen that such training measures fall under the area of necessity according to Section 37 (6) BetrVG.
Works council members elected for the first time have a training entitlement of four weeks, those who are re-elected three weeks of pure training time.
If a works council member had been active in the youth and trainee representation before taking over his office , his entitlement also amounts to three weeks.
A week is calculated here with seven days, so the works council member is entitled to 20 or 15 working days for a 5-day week.
Should the employer be against the training participation of a works council member according to § 37 Abs. 7 BetrVG, the same principles apply as for training measures according to § 37 Abs. 6 BetrVG.
Assumption of costs
The employer has to reimburse all costs that are directly related to participation in the seminar (e.g. seminar fees, travel costs, accommodation, meals, ...).
Costs incurred due to the personal lifestyle of the works council member do not have to be borne by the employer.
In the case of seminar and additional costs, the works council must observe the proportionality of these.
Reimbursement of travel expenses
Depending on the cost, it is usually decided which means of transport the seminar participant will use. The selection can include your own car, a company vehicle, train or plane. However, the training location must be taken into account and, accordingly, the sensibility of the means of transport to be used.
In almost all companies, the binding travel expense regulations or business travel regulations must be observed.
Procedure for sending training courses
The works council determines which works council member or members should take part in the training by means of a secondment decision.
This posting decision must be made in a works council meeting and submitted to the employer in good time (at least 14 days before the start of the training) that the employer has enough time to call the arbitration board if he does not agree with the intended measure, e.g. B. because it is of the opinion that the works council has given no or insufficient consideration to operational needs (Section 37 (6) sentence 4 ff. BetrVG).
If the employer is of the opinion that the posting decision for the seminar to be attended does not comply with the principles of necessity, he can initiate a decision- making process by the labor court .
The law does not provide for special approval from the employer to release the works council member within the framework of the secondment decision.
Training provider in Germany
In Germany, the training of works councils is an extraordinarily diverse, confusing and unregulated market. The goals of the training are, on the one hand, to enable works council members to exercise their office appropriately. On the other hand, the works council members are to be enabled to continue their careers even after leaving office. There are two types of further training:
Type 1 for highly qualified employees who want to work on the works council for a limited time and then want to return to work, often work in the service industry, the majority of whom have a university degree and who have little trade union affinity.
Type 2 for employees from commercial companies who work in the middle and lower levels, see works council work as a lifelong perspective and have strong union ties.
Training providers are trade unions ( e.g. IG Metall , IG Bergbau Chemie Energie , IG Bauen-Agrar-Umwelt , Union Food-Enjoyment-Restaurants ), union-related organizations ( e.g. ver.di Education + Advice , DGB Bildungswerk) and commercial providers (e.g. ifb , Poko , WAF ). There is a general tendency for trade unions to offer type 2 training and commercial providers to offer type 1 training.
The works council must be heard before any notice of termination ( Section 102 BetrVG). He can object to the termination for the reasons stated in Section 102 (3) BetrVG. Despite an objection, the employer is not legally prevented from issuing the notice of termination. In the event of a justified objection, the employer must temporarily continue to employ the dismissed employee who is suing until the termination of the dismissal protection process .
In Austria , the situation with dismissals due to the Labor Constitution Act is a little different: the works council must be informed prior to any intended dismissal and consultations with it upon request. Thereafter, the works council has 1 week (Section 105 (1) ArbVG) to issue a statement (notice of termination cannot be given before this period has expired). This statement can read “express consent”, “no statement” or “objection to termination”. If the works council objects to the dismissal, it can sue to contest a dismissal that has been pronounced anyway (if it does not and in all other cases the terminated employee can contest it himself). However, it is only the court ruling of the first instance that has a “legal effect”: Until this decision (which can sometimes be a long time coming), the dismissed employee hangs in the air with the question of whether he is now considered “continued in employment” or “terminated” .
The works council can refuse to approve individual personnel measures (regrouping, hiring , grouping or relocating employees) and object to the measure, although only a certain catalog of reasons for refusal is available to it. The employer may then not carry out the measure, he can have the lack of consent of the works council replaced by the labor court ; in urgent cases, unilateral, provisional measures by the employer are permitted until the court has decided. If the employer takes a measure without the consent of the works council, the works council can take action against this before the labor court. The labor court orders the employer to repeal the measure if the works council rightly objected.
Measures only become effective with the approval of the works council. The works council has a real right of co-determination in the following social matters, unless a priority statutory or collective agreement already exists ( Section 87 BetrVG).
- Start and end of daily working hours including breaks and distribution of working hours over the individual days of the week,
- Extra work ,
- Questions of the company regulations and the behavior of employees in the company,
- Introduction and application of technical facilities with which a performance and behavior control is possible.
- This also includes the employer's messages on social media, such as Facebook, Twitter, Google+ etc., which also deal with the behavior or performance of employees. This is because such entries can be particularly suitable for monitoring the employees concerned with regard to their behavior and performance (see BAG, December 13, 2016 - 1 ABR 7/15 ).
- Design of occupational safety ,
- Introduction and application of new remuneration principles
- Establishing general vacation principles and the vacation schedule if no agreement is reached between the employer and the employees involved,
- Social facilities such as canteens etc.,
- Allocation and termination of living spaces,
- Setting of piecework wages and bonuses,
- Principles of the company suggestion scheme as well
- Group work principles.
In addition, there is a real right of participation in a few other matters:
- In-company training ( Sections 96 to 98 BetrVG)
- Target agreements : Without reference to remuneration, a target agreement is a "general assessment principle " subject to co-determination in accordance with Section 94 (2) BetrVG; in the case of control by data processing systems, co-determination of performance and behavior control according to Section 87 (1) no. 6 BetrVG also applies . In relation to remuneration, Section 87 (1) No. 10–12 BetrVG apply.
Codetermination often begins with a negotiation between the works council and management. The goal is then to conclude a company agreement. However, if the employer and the works council cannot reach an agreement, the arbitration board will decide at the request of either party .
Participation in operational changes
In the case of serious operational changes, there is an enforceable right of co-determination ( §§ 111 ff. BetrVG) to conclude a reconciliation of interests (does not apply to companies with tendency protection, see § 118 BetrVG) and to conclude a social plan.
The law states:
- Restriction or shutdown of the entire company or of essential parts of the company,
- Relocation of the whole company or of essential parts of it,
- Merger with other companies or the division of companies,
- Fundamental changes to the business organization , the business purpose or the business facilities as well as
- Introduction of fundamentally new working methods and manufacturing processes .
Of particular importance are restrictions or closures, but also mergers that go hand in hand with downsizing and even mass layoffs . In these cases, the works council can, if necessary, enforce a social plan by means of a ruling by the arbitration board and also have a reconciliation of interests negotiated before the arbitration board, which, unlike the social plan, is not admissible.
If the employer deviates from a reconciliation of interests without compelling reason, or if he even fails to attempt to reach an agreement, the employees are entitled to compensation for disadvantages. The works council can also have its own injunction against the employer against the implementation of the operational change .
The tasks and rights of employee participation are predominantly given to the entire works council, not to the individual works council member. Whether these tasks and rights are proactively and actively carried out and enforced or whether the exercise of rights is largely dispensed with for reasons of harmony, depends on the majority in the works council.
Contributions from employers to works council lists or associations supporting them or even individual members who are preferred by employers are therefore prohibited with criminal penalties.
Types of co-determination (co-determination levels)
A distinction is made between the following levels of participation:
- Participation in the workplace,
- Employee participation,
- Corporate participation,
- Codetermination in the economy (e.g. chambers ).
According to the Works Constitution Act, the works council is only responsible for the first two levels. Employee co-determination applies regardless of the company's legal form, while corporate co-determination is only intended for corporations with at least 500 regular employees. According to the Co-Determination Act , the Montan Co-Determination Act or the One-Third Participation Act, the co-determination body is the supervisory board . Members of a works council are often also elected to the supervisory board. You then exercise your right of co-determination as an employee representative in this corporate body.
Works council chairwoman
The chairman of the works council represents the works council within the framework of the resolutions passed by him. In this respect, he is the legal representative of the works council in the declaration, but not in the will. A general power of attorney for the chairman of the works council is not permitted, even by resolution. In addition to the task of representing the works council, the chairman of the works council is authorized and responsible to accept declarations that are to be submitted to the works council. If the chairman of the works council is unable to attend, the deputy chairman of the works council performs his duties.
In addition, the chairman of a works council of up to seven members is responsible for managing the day-to-day business of the works council; in the case of works councils with more members, the chairman of the works council is a natural member of the works committee, which is also responsible for managing this committee. A further allocation of tasks can take place by way of rules of procedure or by resolution.
In detail, the Works Council Chairman is assigned the following tasks by the Works Constitution Act:
- the management of current business in works councils with fewer than 9 members, Section 27 (3) and (4) BetrVG,
- membership in the works committee , Section 27 (1) BetrVG,
- convening meetings, Section 29 (2) BetrVG,
- the determination of the agenda taking into account any requests received, § 29 para. 2 BetrVG,
- the summons of the works council members or the substitute members, Section 29 (2) and Section 25 of the BetrVG,
- the summons of the severely handicapped representative or the youth and trainee representative , § 29 Paragraph 2, or § 32 and § 67 BetrVG
- chairing the meetings, Section 29 (2) and (3) BetrVG,
- signing the minutes of meetings (minutes), Section 34 (1) BetrVG,
- the management of works and partial assemblies , Section 42 (1) sentence 1 BetrVG,
- Participation in meetings of the youth and trainee representatives, unless another works council member has been commissioned to do so, Section 65 (2) BetrVG,
- the advisory participation in the office hours of the youth and trainee representative, unless another works council member has been assigned to do so.
If the chairman of the works council makes statements outside of the resolutions passed by the works council, he acts without power of representation. Such declarations are ineffective; the works council can approve them retrospectively. However, the recipient of the declaration, such as the employer, can trust that the chairman of the works council was authorized to make the declaration, unless he has any evidence to the contrary. The works council cannot invoke the invalidity of the declaration as long as it does not inform the recipient of the declaration of the lack of power of representation.
If a declaration to be made to the works council is not made to the works council chairman but to another works council member, it has no effect as long as it has not been sent to the works council chairman. This is particularly important in cases in which deadlines begin to run upon receipt of a declaration, for example in the case of co-determination in the event of termination. If both the chairman and his deputy are unable to attend and the works council has not taken any measures in such cases, declarations to the works council are already effective if they have been sent to any works council member. The works council can also appoint other works council members by resolution to accept declarations, e.g. B. with special expertise. If this has been communicated to the employer, he can proceed accordingly. If a committee of the works council has been assigned tasks to be carried out independently, the committee chairman is authorized to accept them within the framework of the tasks assigned.
In the event of a gross breach of duty, the chairman of the works council can be excluded from the works council upon application by the labor court ( Section 23 (1) sentence 2 BetrVG).
Substitute members of the works council
To put it simply, substitute members of the works council are “works council members on standby”; they were not directly elected to the works council.
A substitute member takes up his work if a full member of the works council leaves the works council permanently or is temporarily prevented from doing so ( Section 25 BetrVG).
Decent move up
A substitute member moves up to the works council in full if a full works council member finally leaves the works council. No particular statement is required here.
This is the case if the full member:
- leaves the company ,
- resigns from office,
- has lost his eligibility ,
- is excluded from the works council by a legally binding decision by the labor court,
- is classified by the labor court as not eligible.
The substitute member is then automatically considered a full member, but does not automatically take over the tasks of the departed member.
Temporary move up
Reasons for temporary prevention:
- Seminar participation
- business trip
- Personal concern with the measure to be discussed in the meeting
- Dormant employment relationship by law (e.g. parental leave )
The substitution by a substitute member must be objectively necessary. The substitute member may not be allowed to move up arbitrarily, just to achieve protection against dismissal .
Order of advancement
By majority vote
If the works council election was carried out in the course of the majority vote , the substitute members move up to the works council according to the number of votes they have achieved.
Here, the gender of the minority must be taken into account ( Section 15 (2) BetrVG).
With proportional representation (list election)
If the works council election was carried out in the course of the list election , the move up occurs according to the specified order of the list.
If the list is exhausted, then the corresponding substitute member moves up on the list on which the next seat would fall (Section 15 (2) BetrVG).
If there are no more seats of the respective sex to be filled after all substitute members of one gender have been invited, the substitute members of the opposite sex will be invited ( Section 126 No. 5a BetrVG).
If a works council member leaves permanently without substitute members still available, a new works council must be elected ( Section 13 (2) No. 2 BetrVG).
The old works council remains legally binding and legally competent in office until the new body is announced.
Protection against dismissal
The substitute member is subject to special protection against dismissal for the duration of their representation ( Section 15 KSchG, Section 103 BetrVG).
This protection against dismissal begins when the full works council member is prevented from doing so and ends when it ends. Thereafter, the substitute member who has been temporarily moved up enjoys limited protection against dismissal for a period of one year, which arises again every time he moves up.
The works council resolution is the result of the votes that the quorum works council meets in its meetings on matters that fall within its statutory remit.
A resolution is deemed to have been passed if the majority of the works council members present have voted after prior consultation ( Section 33 (1) sentence 1 BetrVG).
The works council only has a quorum if at least half of the members, possibly supplemented by substitute members, take part in a vote within the committee during the works council meeting.
The decisive factor here is the number of works council members determined by the electoral board when the works council was elected ( Section 9 BetrVG).
A works council member can only evade active participation in the decision-making process if he declares himself personally affected by the measure to be decided and this is also objectively given. It is then temporarily excluded from the session. Examples: Transfer of a higher-level job; Termination of the member. In these cases a substitute member is to be invited as a replacement. Since abstaining from voting actually results in a rejection, it cannot be interpreted as a non-participation in the vote.
The right to vote
In principle, every works council member is entitled to vote when passing resolutions.
If members of the youth and trainee representative (JAV) take part in the decision-making process because the persons they represent are predominantly affected by the matter ( Section 67 (2) BetrVG), their votes are counted ( Section 33 (3) BetrVG).
However, if a works council member is affected in his own matter, e.g. B. In the event of a transfer or regrouping , the right to advise and vote is no longer applicable due to a conflict of interests. The works council member has to leave the meeting for the respective agenda item and a substitute member takes his place during this. If this does not happen, the works council resolution is deemed to be ineffective.
Legal consequence: If there is a refusal of consent, this consent is deemed to have been granted in the absence of an effective resolution.
A simple majority of votes of the members present is not sufficient if the majority of the votes of the works council members is required.
This is determined by the BetrVG in the following cases:
- When the works council resigns ( Section 13 Paragraph 2 No. 3 BetrVG)
- When drawing up rules of procedure ( Section 36 BetrVG)
- When commissioning the general works council to settle a matter with company management for the works council ( Section 50 (2) BetrVG)
- When assigning tasks to committees for independent completion ( Section 27 Paragraph 3 and Section 28 BetrVG)
- When assigning tasks from the economic committee to a committee of the works council ( Section 107 (3) BetrVG)
Example: A works council has 19 members and the JAV has 3 members. If 12 votes are cast for the motion, an absolute majority is achieved. If 11 votes are cast by works councils for the motion and 8 by works councils and 3 by the JAV against the motion, the absolute majority is deemed to have failed.
Suspension of resolutions
A decision by the works council can be suspended for a period of one week ( Section 35 BetrVG). An application for this can be made according to § 35 BetrVG:
An application to suspend a resolution is only possible if one of the above Interest groups can assert that this decision represents a significant impairment for the group of employees they represent.
After the one-week period has expired, a new resolution can be passed if the applicant is properly involved. If this resolution is confirmed, a new application for suspension of the resolution is no longer possible (Section 35 (2) sentence 2 BetrVG).
Judicial review of decisions
Works council resolutions can only be examined by the court for their legality, but not for their objective purpose.
Whether a resolution is void can be asserted as a preliminary question in judgment or decision-making procedures, provided that the decision contains illegality or was not properly passed (e.g. through extortion).
The entire works council must check in advance of the resolution whether a resolution meets all the requirements for compliance and legal validity.
Legal consequences if the resolution is void
If it is a measure that does not fall under the co-determination of the works council, its nullity has no effect on the measures of the employer.
If it is a matter of a measure in the course of the co-determination obligation, the resolution does not have a constitutive effect and the measures of the employer are ineffective.
If the employer has no knowledge of the reasons for invalidity, there may be protection of confidence in favor of the employer.
Works council meeting
At the works council meeting, the works council decides through discussions with subsequent voting on measures that it takes or intends to take in the course of its legal tasks, rights and obligations.
The works council cannot take any effective decisions outside of a regular meeting.
Invitation to the works council meeting
The chairman of the works council must invite all participants to the works council meeting properly and in good time, stating the agenda.
The content of the agenda must be specified as precisely as possible. General statements such as "various" or "individual personnel measures" must be avoided as a matter of urgency.
The agenda must give the works council members sufficient time and opportunity to properly prepare for the meeting.
Group of participants
All members of the works council are to be invited to the works council meeting in a timely and proper manner. They are to be given sufficient preparation time and the opportunity to form their own will.
If you are temporarily unable to attend due to illness or vacation, the next substitute member must be summoned ( Section 25 (1) BetrVG).
If the chairman of the works council fails to do this, all resolutions passed at this meeting are deemed to be ineffective.
An exception is only given if the works council chairman was not aware that the works council member was unable to attend and it was no longer possible to summon the substitute member at short notice.
If an invited works council member is present in the company who does not appear at the meeting, no substitute member may move up.
At the request of a quarter of the works council members, the works council chairman must invite a union representative from the union represented in the company ( Section 31 BetrVG).
The union representative can have an advisory role during the meeting.
The employer cannot refuse the union representative to enter the company for the purpose of attending a meeting.
Representative for severely disabled employees
The Representative for Employees with Disabilities (SBV) has the right to take part in all meetings of the works council in an advisory capacity, but without voting rights ( Section 32 BetrVG, Section 178 (4) SGB IX). To this end, the SBV is to be duly and timely invited to all meetings of the works council, its committees and its working groups in accordance with Section 28a of the BetrVG, with notification of all items on the agenda. This also applies to the economic committee (BAG, June 4, 1987 - 6 ABR 70/85), the occupational safety committee (ASA), joint committees of the works council with the employer according to § 28 para. 2 BetrVG, for joint commissions (PaKo) as well for the so-called monthly meetings of the works council or the works committee with the employer according to § 178 Abs. 5 SGB IX.
“Contrary to the too narrow wording of Section 32 (3) BetrVG, persons of trust for the severely disabled who are responsible for the company in question pursuant to Section 177 (1) SGB IX or Section 180 (1) sentence 2 SGB IX as a collective representative for severely disabled persons for a company without SBV are responsible, a right of inspection. This follows from Section 182 (1) SGB IX, according to which the works council is obliged to work closely with the SBV. If these confidants are to be called in to all meetings and discussions of the works council in accordance with Section 178 (4) and (5) SGB IX and to be invited to the agenda in accordance with Section 29 (2) sentence 4 BetrVG, they must also be able to find out about the To get your own picture of the course of the consultations in the works council by inspecting the documents. Otherwise, you would not be able to fulfill your legal duty. ”This also includes the minutes of the meeting.
Person of trust for community service providers
If matters are discussed in the works council meetings that affect those doing community service , their representatives must be summoned in a timely and proper manner, stating the items on the agenda.
Youth and trainee representatives (JAV)
The JAV can send an appropriate representative to all works council meetings ( Section 67 (1) BetrVG). In all matters relating to young employees and trainees in the company, all members of the youth and trainee representatives who, in contrast to the representatives of the severely disabled, are entitled to vote in the decision-making process, must be duly invited ( Section 67 (1) and Section 60 (1) BetrVG).
Speaker committee for senior executives
The chairman of the works council can invite the speakers' committee or one of its members to the meeting ( Section 2, Paragraph 2, Clause 2 of the Speaker Committee Act ).
The employer has no general right to attend works council meetings.
There is an exception if he has requested that a meeting be called. In this case, he must be invited by the works council chairman at least for the points requested ( Section 29 (4) BetrVG).
If the employer has been expressly invited to attend a meeting by the works council chairman, he must comply with this invitation within the framework of the trustful cooperation between the works council and the employer or send a representative with appropriate specialist knowledge.
If the employer takes part in a works council meeting, he is entitled to consult a representative from his employers' association, provided he is a member ( Section 29 (4) sentence 2 BetrVG).
The representative of the employers' association has no right to speak during the meeting, but the works council chairman can give him the floor.
If the need exists and a more detailed agreement has been made with the employer, u. a. technical supervisory officers of the trade association or members of the general works council are invited to the meeting.
When does the meeting have to take place?
The chairman of the works council calls a meeting if:
- there is a need
- a weekly meeting is provided for in the rules of procedure ( Section 36 BetrVG),
- this was requested by a quarter of the works council members ( Section 29 (3) BetrVG),
- this was requested by the employer (Section 29 (3) BetrVG).
Position of HR directors to works councils
For the members of works councils, it is of great importance how they are seen by HR directors and HR department heads. The spectrum ranges from friendly cooperation to declared opposition. The Goinger Kreis gives an example of the goals of HR directors and HR department heads when dealing with works council members in its theses and demands under the heading "Using the opportunities of employee participation": "Using works councils as a corrective and sparring partner. Supporting the generation change: promoting a new generation of employee representatives. No career-damaging branding of works council activities. "
Other bodies involved
- Youth and trainee representation : Representation of the interests of young people under the age of 18 and trainees under the age of 25. To be chosen in all companies and departments that employ at least five young people and trainees.
- Representation of the severely disabled : Representation of the interests of the severely disabled. To be chosen in all companies and offices that employ at least five severely disabled employees.
- Economic committee : body for the mutual information of management and works council in economic matters. To be used in companies with more than 100 employees. Members are determined by the works council.
- Speaker committee : Representation of the interests of senior executives . Eligible in all companies with at least ten managerial staff. The executive employees are not represented by the works council.
The representative data from the IAB Establishment Panel 2018 on the prevalence of works councils show that there is no works council in numerous small and medium-sized companies despite the legal provisions. In particular in companies with less than 100 employees, in which more than half of all dependent employees work, there is often no company interest representation; this is particularly true for companies with 5 to 20 employees. According to the 2018 survey, 9% of companies with more than five employees had a works council and 41% of employees in the private sector were represented by a works council. In eastern Germany, the density of representation with 35% of employees is lower than in western Germany with 42%.
The annual “German Works Council Day” has been taking place since 2004, a nationwide event at which works councils meet and discuss publicly with experts and top representatives from both social partners and state institutions. Over the years this event has increasingly become a representative "Parliament of Works Councils". In cooperation with DGB , Otto-Brenner-Stiftung and Bund-Verlag , the German Works Council Prize is awarded here, which recognizes successful practical examples of works council work.
In the television program Monitor on 14 May 2009 an employee of a home improvement chain that employees reported a branch with council who wanted to go to a branch without works, by department heads as betriebsrat contaminated would be defined. The Unword of the Year campaign chose this word as the Unword of the Year 2009. It was a linguistic low point in dealing with wage earners.
Numerous company managements try to prevent the establishment of a works council by generously and voluntarily offering alternatives (“trust councils” at Würth, etc.). Another variant of circumvention is when opponents of the works council can be specifically elected to the works council.
History of the works councils
- Hermann Kotthoff: Works councils and citizen status. Change and continuity of employee participation. Rainer Hampp Verlag, Munich / Mering 1994, ISBN 3-87988-095-6 .
- Werner Milert, Rudolf Tschirbs: The other democracy. Company interest representation in Germany, 1848 to 2008. Klartext Verlag, Essen 2012. ISBN 978-3-8375-0742-3 .
- Klaus Neumann: Freedom in the workplace. Works democracy and works councils in Germany and Sweden, 1880–1950. Campus Verlag, Frankfurt am Main / New York 2015, ISBN 978-3-593-50491-9 .
Sociological and social psychological studies
- Andreas Drinkuth: A social elite - the works councils. 20 portraits. Schüren, Marburg 2010, ISBN 978-3-89472-230-2 .
- Norbert Gulmo: Mental stress and coping options for employee representatives - stress and the associated health-impairing and promoting factors in works councils and representatives of the severely disabled in Germany. 2008, ISBN 978-3-86618-221-9 .
- Juri Hälker: Works council members in role conflicts. Business policy thinking between co-management and counterpower. Rainer Hampp Verlag, Munich / Mering 2004, ISBN 3-87988-800-0 .
- Jürgen Prott : Future for Works Councils - Perspectives on Trade Union Company Policy . Westphalian steam boat, Münster 2013, ISBN 978-3-89691-948-9 .
- Martin Schwarz-Kocher, Eva Kirner, Jürgen Dispan, Angela Jäger, Ursula Richter, Bettina Seibold, Ute Weißfloch: Representing interests in the innovation process. The influence of co-determination and employee participation on company innovations. Edition Sigma, Berlin 2011, ISBN 978-3-8360-8725-4 .
- Erhard Tietel: Confrontation - Cooperation - Solidarity. Works councils in a social and emotional dilemma. edition sigma, Berlin 2006, ISBN 3-8360-8679-4 .
Works councils in labor law and practice
- Ingrid Artus / Clemens Kraetsch / Sile Röbenack: Founding of works councils. Typical processes, strategies and problems - an inventory. Nomos / edition sigma, Baden-Baden 2015, ISBN 978-3-8487-2517-5 .
- Heiner Minssen, Christian Riese: Professionalism of lobbying. Working conditions and organizational practice of works councils. edition sigma, Berlin 2007, ISBN 978-3-8360-8683-7 .
- Matthias Müller: The works council as an institution from a HR perspective. Rainer Hampp Verlag, Munich / Mering 2005, ISBN 3-87988-938-4 .
- Peter Skupnik: Works Council Management, The effective organization of responsible employee interest representation . expert-verlag, Renningen 2003, ISBN 3-8169-2147-7 .
- Eva-Maria Stoppkotte, Thorsten Halm: Successful works council work in times of crisis. 90 examples of successful lobbying - documentation on the German Works Council Prize 2009. Bund-Verlag, 2010, ISBN 978-3-7663-3989-8 .
- Wolfram Wassermann: Works Councils. Actors for democracy in the world of work. Westfälisches Dampfboot Verlag, Münster 2002, ISBN 3-89691-523-1 .
- Uwe Wilkesmann, Maximiliane Wilkesmann, Alfredo Virgillito, Tobias Bröcker: Expectations of interest groups. edition sigma, Berlin 2011, ISBN 978-3-8360-8726-1 .
- Hartmut Meine : Union, yes please! - A manual for works councils, shop stewards and active people . Hamburg 2018, ISBN 978-3-89965-779-1 .
- AiB labor law in the company - magazine for works council members . Bund-Verlag GmbH, Frankfurt, ISSN 0174-1225
- Works council intern. Trade journal, i. b. m. Institute for Workplace Co-Determination, ISSN 1863-2327
- Judgment service for the works council, current case law, your rights of co-determination as a works council, legally secure representation of the interests of your colleagues; Verlag für die Deutsche Wirtschaft AG, Bonn, ISSN 1614-2179
- Works Constitution Act - BetrVG
- First ordinance for the implementation of the Works Constitution Act (Wahlordnung - WO)
- ^ Franz Traxler: Austria: Still the Country of Corporatism? In: Anthony Ferner / Richard Hyman (eds.): Industrial Relations in the New Europe . Blackwell, Oxford 1992, p. 275.
- ^ Adelheid Hege / Christian Dufour: Company interest representatives without trade union ties? The paradox of the increasingly unionized Comités d'entreprise. In: Industrial Relations , Vol. 16, H. 2, 2009, p. 156 ff.
- ^ Hans Jürgen Teuteberg: History of industrial co-determination . JBC Mohr (Paul Siebeck), Tübingen 1961, second part.
- ↑ Axel Weipert: The Second Revolution. Council movement in Berlin 1919/1920. Berlin 2015, ISBN 978-3-95410-062-0 . It also contains a detailed description of Article 165 of the Weimar Constitution and the Works Council Act.
- ↑ At the time, the law was passed with great opposition to further demands; at a demonstration in front of the Reichstag there were dozens of deaths among demonstrators following intervention by the military - cf. Axel Weipert: At the gates of power. The demonstration on January 13, 1920 in front of the Reichstag, in: Year Book for Research on the History of the Labor Movement , Issue II / 2012, ISSN 1610-093X
- ↑ Cf. Ralf Hoffrogge : From Socialism to Economic Democracy - A Brief Outline of Ideas of Economic Democracy in the German Labor Movement , in: Marcel Bois / Bernd Hüttner (ed.): History of a pluralist left , Volume 3, Berlin 2011, online at www. workerscontrol.net .
- ↑ FKHE ( Fitting / Kaiser / Heither / Engels) § 37 RdNr. 109a, 20th edition
- ↑ FKHE § 37 No. 129, 20th edition
- ↑ BAG May 15, 1986, AP No. 54 to Section 37 BetrVG
- ^ BAG February 15, 1995, 7 AZR 670/94
- ↑ BAG June 7, 1989, 7 ABR 26/88
- ↑ Hess. LAG of October 24, 2007 ?? 9 TaBV 84/07
- ↑ BAG July 19, 1997, 7 ABR 14/96
- ↑ FKHE § 37 No. 132 to 134a, 20th edition
- ↑ FKHE § 37 No. 153, 20th edition
- ↑ Beat Balzli: WORKS COUNCILS: With shrimp and caviar - DER SPIEGEL 34/2005. In: spiegel.de. August 22, 2005, accessed March 3, 2019 .
- ↑ Markus Fasse: Training for works councils: the boss pays the bill. In: handelsblatt.com. December 7, 2006, accessed March 3, 2019 .
- ^ Hermann Kotthoff : Promotion qualification for works councils. (PDF) In: boeckler.de. Hans Böckler Foundation, January 2004, accessed on March 3, 2019 .
- ↑ Detlef Ullenboom: qualification courses for works councils. (PDF) In: boeckler.de. Hans Böckler Foundation, February 2005, accessed on March 3, 2019 .
- ↑ The technical facility does not need to be intended for monitoring. It is sufficient if it is suitable for it. The employer does not need to intend to monitor employees, Meyers Lexikon
- ↑ The works council has the duty, for example, to check application programs planned or used in the company, regardless of the opinion of the management, for the possibility of performance and behavior control. In the event of changes to the programs (data, evaluation, etc.), the works council is not only entitled to participate, but even obliged.
- ↑ The decision should have far-reaching consequences for the way companies deal with appearances in the area of social media. According to this, the works council must always be involved when corresponding posts by users are possible there, which should be the rule. Participation within the framework of § 87 BetrVG means that the works council must be heard before the introduction and must also agree to it. If there is no agreement between the employer and the works council, the matter must be transferred to the arbitration board. The works council therefore has a strong right of co-determination; measures that the employer has carried out in disregard of this right must be reversed at the request of the works council.
- ↑ BAG: Works council may have a say on Facebook - Bergner & Özkan lawyers . In: Bergner & Özkan lawyers . December 19, 2016 ( rechtsanwalt-wedel.de [accessed December 20, 2016]).
- ↑ BAG, judgment of February 17, 1981 , Az. 1 AZR 290/78, guiding principle = AP No. 11 to § 112 BetrVG.
- ↑ fitting. Section 26, marginal no. 34
- ↑ FKHE § 25 No. 13, 20th edition
- ↑ Fitting, Section 25 No. 21, 28th edition
- ↑ Fitting, Section 33 No. 33, 28th edition
- ↑ BAG August 3, 1999, 1 ABR 30/98
- ↑ BAG April 3, 1979, 6 ABR 64/76, cf. FKHE § 33 Rn. 48, 20th edition
- ^ BAG, 23 August 1988, 1 AZR 276/87
- ^ BAG, April 28, 1988, 6 AZR 405/86
- ↑ BAG, October 28, 1992, 7 ABR 14/92
- ↑ FKHE § 33, Rn. 23, 20th edition
- ↑ FKHE § 33 Rn. 23, 20th edition
- ↑ BAG, decision of April 21, 1993 - 7 ABR 44/92
- ↑ Wolmerath in HaKo-BetrVG, § 34 Rn. 10 and 14
- ↑ Goinger Kreis: Using the opportunities of employee participation ( Memento from March 16, 2012 in the Internet Archive )
- ↑ Peter Ellguth, Susanne Kohaut: Collective bargaining agreements and company interest representation: Results from the IAB company panel 2018 . In: WSI (Ed.): WSI-Mitteilungen . No. 4/2019 , doi : 10.5771 / 0342-300X-2019-4-290 ( wsi.de [PDF; accessed April 1, 2020]).
- ^ German Works Council Prize
- ^ Unword of the year 2009: "Works council contaminated"; Time online, January 19, 2010
- ↑ Ute Grau and Barbara Guttmann. Book: Reinhold Würth . Swiridoff, Künzelsau 2005, ISBN 3-89929-057-7 .
- ^ IG Metall @ SAP: Works council: 9 out of 10 didn't want it - IG Metall @ SAP. Retrieved July 21, 2017 .