The works constitution and employee representation arbitration body is an auxiliary body of its own under works constitution law, which serves to settle differences of opinion between employer and works council or staff council .
The arbitration board is not an arbitration tribunal as regulated in the Code of Civil Procedure . Not only does it apply the law, it can also set the law itself, for example justifying the employees' compensation claims in a social plan .
A distinction is made between voluntary and enforceable arbitration bodies,
Voluntary arbitration boards
Voluntary arbitration bodies are rare in practice. As a result of the general freedom of action, the company parties (employer and works council) are free to try to resolve differences with the help of an arbitration board. Their result then becomes binding through the final agreement of the parties, if the parties do not submit to the ruling of the voluntary conciliation body in advance, Section 76 (6) BetrVG.
Enforceable settlement bodies
The parties to the company can enforce the activity of the conciliation body if the law so provides, for example with the wording, “If an agreement ... does not come about, the conciliation body decides. The ruling of the arbitration board replaces the agreement between the employer and the works council ”, Section 87 (2) BetrVG.
The focus of the activities of the arbitration boards is on codetermination in social matters,BetrVG.
Competence of the arbitration board
The conciliation body can only make binding regulations on topics for which this is provided for by law.
The question of jurisdiction can be checked three times:
1. If the arbitration board is not responsible, the labor court will only reject an application for the establishment of an arbitration board if the arbitration board is obviously not responsible, ArbGG .
2. The arbitration board must check its competence at the beginning of its work.
3. The parties to the company can have the decision made by the arbitration board revoked on application by the labor court if the arbitration board was not responsible for the regulated issues.
The arbitration board only decides on legal issues beyond the question of their competence in exceptional cases, e.g. B. in the context of § 87 Abs. 1 Nr. 5 and Nr. 7 BetrVG.
Formation of an arbitration board
Invocation of the arbitration board
If one of the working parties decides to call the conciliation body if the negotiations fail (the works council by formal resolution), negotiations begin on the number of assessors and the person of the chairman of the conciliation body.
Occupation of the arbitration board
The arbitration board consists of an equal number of assessors, who are appointed by the employer and the works council, and an impartial chairman whose person both sides must agree on. If an agreement cannot be reached on the person of the chairman or on the number of assessors, the labor court decides on application, Section 76 (2) BetrVG.
In practice, the works council notifies the employer or the employer of the works council of its decision to call an arbitration board and also states who should be the chairman of the arbitration board and how many assessors the arbitration board should have. Labor court judges are regularly appointed as chairmen of arbitration boards.
When electing the judge as the chairman of the arbitration board, it is important to ensure that he is not a member of the labor court that is responsible for the company. Since the verdict of the arbitration board can be judicially reviewed, the situation could arise that the judge would have to decide on his own arbitration board decision. Therefore judges have to refuse to preside over the arbitration board if “their” labor court is responsible for the company.
The trade unions and employers' associations are aware of the judges who can be considered as chairpersons of arbitration boards and tend to be seen as somewhat more employee- or employer-friendly. In the case of controversial questions, the assessors of the respective company parties will often fail to agree, so that the vote of the chairman is ultimately decisive in the voting process. Therefore, the person of the chairman of the arbitration board is often fought intensely.
The number of assessors depends on the difficulty or complexity of the matter to be negotiated. In the case of simple regulations, two assessors on each side will be sufficient; in the case of difficult or complex issues, three or four assessors on each side can be appropriate. If the employer or the works council has no experience in carrying out arbitration proceedings, a lawyer or a representative of the employers' association or the trade union should definitely be called in as an assessor.
The procedure before the arbitration board
The arbitration board proceedings take place regularly in the company or at a neutral location. The procedure is not public.
Representatives of the employer and the works council can take part in the negotiations of the arbitration board, but not in the votes of the assessors and the chairman in the arbitration board. For example, when negotiating accident prevention issues, the employer's employees involved can present their arguments to the arbitration board. However, the resolution in the arbitration board remains secret.
The participants appear at the meeting and present their respective arguments to the chairman. Since an agreement is to be reached, a good arbitration board chairman tries not to decide the matter himself, but rather to get the parties to an agreement. The chairman often makes suggestions for this, which are then discussed in the respective camps when the session is interrupted. In this way, a rapprochement between the parties should be achieved.
An arbitration board procedure on complex issues, such as the introduction of new technologies, can drag on for days with the participation of experts until all the details have been clarified. An arbitration board procedure about a simple regulation can be finished after a few hours.
If the parties cannot reach an agreement despite the influence of the chairman, a proposal is first put to the vote. In the first round of voting, the chairman abstains from voting; if there is no majority, he takes part in the next vote and thus decides this regularly, Section 76 (3) BetrVG. Due to the occupation of the arbitration board, there is then a majority on the employer or works council side, whose proposal is deemed to have been adopted.
If a party has not appointed an assessor or does not appear for the hearing, the members present and the chairman decide alone, Section 76 (5) BetrVG. This ensures that one side cannot block the implementation of the conciliation body procedure.
The resolution of the arbitration board - regardless of whether the employer and works council have agreed or whether the chairman of the arbitration board has voted with them - is recorded in writing by the chairman, signed and forwarded to the employer and works council, Section 76 (3) BetrVG.
The effect of the arbitration board decision
With regard to the effectiveness or binding nature of this resolution, a distinction must be made as to whether the subject matter of the regulation is an area of mandatory co-determination or another area.
- When regulating an area for which the law expressly provides that the ruling by the conciliation body replaces the agreement between the employer and the works council (e.g. works agreement within the meaning of BetrVG. (2) BetrVG), the resolution of the conciliation body forms a
- When regulating an area for which the law does not expressly provide for an arbitration board, the decision of the arbitration board only forms a (voluntary) company agreement if both sides either submit to the decision of the arbitration board beforehand or accept it afterwards, Section 76 (6) BetrVG. Otherwise the ruling of the arbitration board has no binding effect.
Of course, this does not apply if the employer and works council have reached an agreement within the framework of the arbitration board without the consent of the chairman of the arbitration board. In this case, a voluntary company agreement is concluded even without a declaration of submission or acceptance.
Judicial review of the arbitration board's verdict
The decision of the arbitration board can be judged for legal errors. Both the lack of competence of the arbitration board and a violation of higher-ranking law (laws and collective agreements) can lead to the resolution of the arbitration board being repealed. Procedural and formal errors are also significant here.
The verdict of the arbitration board can only be checked in court to determine whether the decision of the arbitration board exceeded the limits of its discretion. This is not already the case if the labor court thinks it knows a better regulation itself. An overrun is only to be assumed if the decision of the conciliation body no longer contains a proper weighing of interests or is guided by irrelevant motives.
The application for review because the discretionary limits have been exceeded must be submitted to the labor court by the works council or employer within two weeks of receipt of the written arbitration board decision, Section 76 (5) sentence 4 BetrVG. Errors in law can still be checked after this period.
The labor court at the company headquarters is responsible for these proceedings and decides on them in the decision-making process.
Costs of the arbitration board
The employer must bear the costs of the arbitration board. they consist of
- the business expenses, d. H. the costs arising directly from the implementation of the arbitration board (costs for rooms, stationery, office staff, etc.);
- the remuneration of the chairman, which he usually agrees with the employer. If no agreement is reached, he shall determine it himself at his reasonable discretion, taking into account the difficulty of the matter and the time required; In doing so, he has to take into account the legitimate interests of the members of the arbitration board and the employer. In practice, hourly fees of EUR 200.00 to EUR 300.00 are mentioned in 2009, also for preparation times and rework;
- the remuneration of the assessors - who are not members of the company. According to Section 76a (4) sentence 4 BetrVG, this must be lower than the remuneration of the chairman. In general, case law considers an assessor's fee in the amount of 70% of the remuneration due to the chairman of the arbitration board to be appropriate;
- the costs of a consulted expert, which he himself determines according to the usual rates;
- the expenses and expenses of all members of the arbitration board (travel expenses, etc.).
The members of the works council who take part in the arbitration board do not receive any separate remuneration. Rather, Section 76a (2) BetrVG refers to Section 37 (2 + 3) BetrVG, which regulates the continued payment of remuneration or the compensation of overtime due to works council work. Works council members therefore only receive continued payment of their contractual remuneration.
In total, an arbitration board with an external assessor and a day of meetings will cost at least EUR 10,000.
Because of these costs, employers are regularly keen to avoid carrying out arbitration proceedings. This promotes the willingness to come to an agreement without having to appeal to the conciliation body and thus improves the negotiating position of the works council.
Conciliation body in the public service
Conciliation bodies are also set up in the public sector. The legal basis for this is the respective Employee Representation Act , e.g. B. BPersVG. The arbitration boards are made up of representatives from the agency and the respective staff council . However, decisions by the conciliation body are usually only of a recommendation to the service body.
Works agreements on permanent arbitration boards
In medium-sized and large companies there are often company agreements on permanent arbitration bodies so that in the event of a conflict, time is not lost every time through the necessary set-up procedure.
- Martin Wenning-Morgenthaler: The conciliation office . 5th edition. Luchterhand, Cologne 2009, ISBN 978-3-472-07402-1 .
- Christian Ehrich, Oliver Fröhlich: The conciliation office . 2nd Edition. Verlag CH Beck, Munich 2010, ISBN 978-3-406-60710-3 .
- Karl Fitting [greeting], Gerd Engels, Ingrid Schmidt , Yvonne Trebinger, Wolfgang Linsenmaier : Works Constitution Act: Hand commentary; [with voting rules] . 25th, revised edition. Verlag Franz Vahlen, Munich 2010, ISBN 978-3-8006-3712-6 , p. 1051 ff .
- Berthold Göritz, Detlef Hase, Matthias Pankau, Dietmar Röhricht, Rudi Rupp, Helmut Teppich: Handbook of the Unification Office. Possibilities for action for a targeted and appropriate conflict resolution . 4th, revised and updated edition. Bund-Verlag, Frankfurt / Main 2007, ISBN 978-3-7663-3746-7 .
- Thomas Klebe, Jürgen Ratyczak, Micha Heilmann, Sibylle Spoo: Works Constitution Act: Basic Commentary ; [with voting rules] . 16th, revised and updated edition. Bund-Verlag, Frankfurt / Main 2010, ISBN 978-3-7663-3999-7 , p. 368 ff .
- Rudi Rupp: The conciliation office. Action aid for works councils . 2nd Edition. Bund-Verlag, Frankfurt / Main 2011, ISBN 978-3-7663-3963-8 .
- Bianka Schlick: The arbitration board . In: The staff council . No. 6/2008 , p. 248 .
- Wenning-Morgenthaler, Die Einigungsstelle, marginal note 14.
- Wenning-Morgenthaler, Die Einigungsstelle, para. 33.
- Wenning-Morgenthaler, Die Einigungsstelle, marginal note 35.
- Wenning-Morgenthaler, Die Einigungsstelle, paras. 231 to 246.
- Wenning-Morgenthaler, Die Einigungsstelle, para. 332 with further examples at para. 335.
- Wenning-Morgenthaler, Die Einigungsstelle, paragraphs 391 to 400.
- Wenning-Morgenthaler, Die Einigungsstelle, para. 388.
- The regulation of the level of remuneration provided for in § 76a BetrVG by state regulation has not yet been issued.
- Wenning-Morgenthaler, paragraphs 485 to 490.
- Thomas Klebe, Jürgen Ratyczak, Micha Heilmann, Sibylle Spoo: Works Constitution Act: Basic Commentary ; [with voting rules] . 14th, revised and updated edition. Bund-Verlag, Frankfurt / Main 2007, ISBN 978-3-7663-3789-4 , p. 326 (RN 2).
- Concrete calculation example of a one-day arbitration board in spring 2013 results in travel expenses of 16,400.00 EUR
- Model works agreement "Permanent settlement body"