Staff representation

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The Staff Committee (z. B. Staff, District Staff, Main Staff , General Staff ) is the representation of employees ( salaried employees , civil servants ) a department of public administration (in federal , countries , communities , other corporations , institutions and foundations under public law ), comparable with the workers representation in the premises of the private sector ( works ). The right of the Staff Committee is in the staff representation laws of the Federal and the countries governed.

historical development

19th century until the German Revolution in 1918

The origin of employee participation lies in the commercial economy ( trade regulations ). It was only in the course of the First World War that the first regulations came about in state armaments companies, such as the shipyards and the torpedo workshop of the Imperial Navy , or the railroad administrations of the federal states. With the law on the patriotic auxiliary service of December 15, 1916, employee and arbitration committees were set up in companies important to the war and supply, initially with more than 50 (later more than 20 employees). Participation - that is, the right to submit applications, complaints and wishes - served to mobilize reserves of strength for the war economy , which one could not hope for from an "uninvolved" workforce .

Participation in the public service also began in the 19th century , albeit much later than in the commercial economy. At that time, the public service, right down to personnel recruitment, was strongly influenced by the imagination and organization of the military (principle of command and obedience ). Above all, however, the efforts between employees and civil servants were separate. Although the auxiliary service law of 1916 also applied to some public companies and administrations, it did not apply to civil servants. The first demands for officials to be represented were made around 1895 by the post office assistants, telegraph assistants, post office and telegraph sub-clerks, and the chief postman. That was telling in a way. On the one hand, it was a field of activity that, then as now, was at the forefront of technological progress. At that time, the demands for participation were raised by people who, according to their field of work, work dynamics and possibly also according to their self-image, were not “administrative officials”, but employees in the service sector .

Weimar Republic (1919 to 1933)

After the First World War , the situation changed. The pre-war participation efforts and the concession of employers and the legislature during the war were overwhelmed by the revolutionary council idea ( workers 'and soldiers' councils in the November revolution of 1918). After the proclamation of the republic on November 9, 1918, the workers 'and soldiers' councils in the Berlin Circus Busch elected the government of the people's representatives on November 10, 1918 . On December 16, 1918, the Reich Conference of Workers 'and Soldiers' Councils met in Berlin. In the following years, however, the soldiers' councils disbanded with the demobilization of the army. In the Weimar constitution , the council system for state organization was rejected. Nevertheless, the development in the economy did not follow the pre-war model of workers 'and employees' committees. A works council law was passed on the basis of Art. 165 of the new Reich constitution. The Works Council Act of 1920 provided for co-determination in personnel, social and economic matters through a works council . The Works Council Act actually set up works councils, but not the planned district workers' councils or the district economic councils that were supposed to participate in socialization .

The public service , at least the civil servants, did not follow the revolutionary line after the First World War. The civil servants received their own regulation in Article 130, Paragraph 3 of the Reich Constitution on “Representation of Officials” on the basis of a future Reich law. Such a law was not passed until 1933, despite various attempts. In the Reich as in the Länder, committees of civil servants were formed on the basis of administrative regulations . Her powers were to give expert opinions on general internal matters and to make representations in his official and personal matters at the request of an official. The whole thing should have the purpose of increasing the enjoyment of work and minimizing friction losses. The representatives of civil servants in the public service were decoupled in the constitution and in the implementation in practice from the revolutionary councils, which were also tailored to co-decision-making at the management level. The tradition of the "advisory committee" applied to the civil servants' representatives.

National Socialism (1933 to 1945)

After the National Socialists came to power it was not only

  • 1934: the law on the regulation of national labor of January 20, 1934 (RGBl. I p. 45) repealed the works council law, but the law on the regulation of work in public administrations and companies of 23 March 1934 (RGBl. I p. 220) issued. Numerous implementing ordinances have been issued for both laws.

Countries in the Allied Occupation Zones (1945 to 1949)

  • 1946: The Control Council Law No. 22. (English: Control Council Law No. 22) of 10 April 1946 the Allied Control Council allowed the formation of works along the lines of the Weimar period . It mentioned employee representatives for workers and employees, the officials were not mentioned (which sometimes led to problems of interpretation in the courts). In fact, the civil servants were initially included in the works council system of the public administrations.

In various state constitutions of the old (federal) states, codetermination regulations were provided (only for the economic sector in Bavaria, North Rhine-Westphalia and Saarland, in Berlin the "administration" is also mentioned). Only in two countries was codetermination through employee representatives expressly regarded as an unrestricted basic right, both in business and in the public sector:

  • Art. 47 of the Constitution of the Free Hanseatic City of Bremen of October 21, 1947 (Journal of Laws p. 251): Joint works councils for all persons in companies and authorities through the choice of employees; Participation in economic, social and personal issues of the company,
  • Art. 37 of the Constitution of the State of Hesse of December 1, 1946 (Law and Ordinance Gazette p. 229): In all companies and authorities, employees, workers and civil servants receive joint works councils through the election of the workers; Participation in social, personal and economic issues.

In both countries, the works council laws that were passed soon after applied to both business and administration . Although the Hessian law ( works council law for the state of Hesse ) was passed by the state parliament on May 26, 1948 and issued on May 31, 1948, it could not initially come into force because the American military government, even after lengthy negotiations, passed §§ 30 Paragraph 1, 32 Paragraph 1 and Sections 52 to 55 were temporarily repealed ( suspended ) until the Basic Law was passed , so that it was only published on October 1, 1948 and came into force on October 2, 1948 (it was about the "equal participation" of the works council and the employer (§ 30 para. 1), "no participation in economic issues" in companies that serve political, denominational, artistic and welfare purposes (§ 32 para. 1) and the extension of participation Changes to the operational purpose or changes to the plant, the introduction of new working methods, mergers and closures, as well as the submission of the commercial and tax balance sheets, Einsi legal right in the trading books, the correspondence and the concluded written contracts, the employer's obligation to report quarterly in the case of confidentiality obligations of the works council members and the posting of two works council members to the supervisory board).

Federal Republic of Germany (1949 to 1990)

The common works council laws were deliberately abandoned with the Works Constitution Act 1952 and the Federal Personnel Representation Act 1955 because "the schematic application of the Control Council Act No. 22 had led to grievances". As a result, the federal states passed their own staff representation laws in the following years.

Constitutional foundations

The Basic Law , unlike the Weimar Imperial Constitution (WRV), explicitly does not mention personnel representation in the public service, nor does the North Rhine-Westphalian state constitution (Section 26 LV NW). During the preparatory work on a federal staff representation law , it was disputed whether there should be a uniform regulation for staff representation in businesses and public administrations. It was also questionable whether the officials 'representatives should be included in the public service staff councils or whether special officials' representatives should be formed, as provided for in Article 130 (3) WRV. The result was:

The issue of uniform legislation for employees in the private sector and public administration was settled when the Works Constitution Act of 1952 expressly excluded its applicability to companies and administrations of corporations under public law. This resulted in the public law concept of the staff representation. The legislative competence for staff representation law of the Federation follows from Art. 73 No. 8 GG . Staff representatives are public institutions. This in turn allows the countries to enact their own laws for their administrations. Because in the area of ​​service law of the federal states there is no exclusive or competing legislative competence of the federal government. Regulations for the states by the federal government are only permitted as framework regulations ( Art. 75 No. 1 GG); the competing jurisdiction of Art. 74 No. 12 GG for collective labor law does not apply.

Joint staff representatives for employees and civil servants do not contradict the traditional principles of the professional civil service . The status differences are taken into account by the group principle. Then the groups are available for. B. to a minimum number of seats on the staff council according to their size, there is usually a separate election, they are represented on the board and when voting on matters that only affect members of their group, they vote alone. The group principle, at least the civil servants, is constitutionally protected as a traditional principle of civil servant law. The fact that there were no civil service representatives on a legal basis during the Weimar period is harmless. The constitutional norm does not focus on constitutional reality, but on the abstract structures, i.e. the principles. The group principle as a special embodiment of the special status under civil service law is one of the traditional fundamental principles, if only because it was part of the Weimar Constitution .

Scope of the staff representation law

The scope of the law on staff representation includes the legal entities under public law for which staff councils are to be formed. In Germany, these are the federal government, the federal corporations , institutions and foundations under public law (for example the substitute funds in statutory health insurance ) as well as the federal courts and the federal works administrations ( Section 1 BPersVG). In the federal states , these are the offices of the respective state, the municipalities and corporations, institutions and foundations under public law that are subject to state supervision (see e.g. § 1 LPVG NW ).

The right to represent employees also extends to private companies , public companies and communal savings banks . Own operations are managed according to the EigenbetriebsVO (von Hippel-Rehborn, Laws of the State of North Rhine-Westphalia, No. 24). Own businesses are legally dependent special assets of a municipality with their own organization, business management and accounting in accordance with the company statutes . Own operation is not legally competent. It is a specific form of organization under public law. The Regiebetrieb is a cost-accounting facility in the municipal budget with full involvement in the municipal organization. The council and administration have full opportunities to influence the management. It is practically a municipal office with a certain budgetary independence.

The Works Constitution Act does not apply to federal, state or municipal administrations, etc. ( Section 130 BetrVG). By § 1 , § 95 BPersVG and § 130 WCA one other gaps and overlap-free boundaries between the will public staff associations in the field of management and employee representatives in the premises of the private sector produced. The legal form of the organization is decisive in each individual case . If it is one of public law, then the relevant staff representation law applies; if it is one of private law , the Works Constitution Act applies. This also applies if the corporation under private law ( GmbH , stock corporation ) is predominantly or exclusively in the hands of a public administration agency. On the other hand, the company health insurance funds form staff councils , even if they mainly insure employees of a private company. These are self-governing institutions as corporations under public law. The Works Constitution Act also applies to so-called "mixed companies" of associations of persons and corporations under public law (research institute in a university and a private donor). The joint operation under private law receives a works council .

The Federal Personnel Representation Act applies to the Federal Employment Agency , the replacement funds of the statutory health insurance , the Federal Miners' Union , the Deutsche Bundesbank , Deutsche Welle and Deutschlandfunk . It does not apply to the employees of the European Central Bank because it is an intergovernmental organization on German soil, not a corporation under German public law. For the administrations of international or supranational institutions located in the territory of the Federal Republic of Germany, the staff representation law does not apply because it is not a German public service. For employees, the Works Constitution Act can come into question if there is no extraterritoriality . For employees of EU institutions , European Community law applies. The Federal Personnel Representation Act contains framework regulations for the legislation of the federal states.

The right of staff representation does not apply to the churches , although in many cases they are corporations under public law rather than private law (cf. Art. 140 GG, Art. 137 (5) WRV). This follows from § 112 BPersVG , 120 LPVG NW . The exclusion is also intended to affect ecclesiastical institutions in the form of a publisher with an entry in the commercial register that are supported by a church order. According to church labor law (e.g. MAVO), employee representatives are formed there, but they usually have fewer rights of co-determination vis-à-vis staff councils.

Staff representation law does not apply to soldiers without further ado . They elect representations in accordance with the provisions of the Federal Personnel Representation Act , unless they are agencies that are named in Section 4 (1 ) of the Soldier Participation Act (SBG) ( Section 60 SBG). The units of the “fighting force” are summarized in Section 4 (1) of the SBG. You elect shop stewards according to the special regulations of the SBG. Also conscripts elect shop stewards ( § 2 para. 3 SBG). The Personnel Representation Act also does not apply to community service providers ( Section 37 (1) ZDG ).

Position of the staff councils

The distribution of competencies created by the staff representation laws is simple and clear. On the side of the " employer " is the department . On the other hand, a staff council is formed on the “employee side” (civil servants, salaried employees, workers, the latter two being combined into a uniform group “employees” based on the TVöD , TV-H and TV-L ).

For some areas there are special regulations that regulate who is the office in each individual case. One example is Deutsche Welle ( § 90 BPersVG): The regulations made here are necessary because Deutsche Welle operates facilities in Bonn (formerly based in Cologne ) and Berlin .

The legal successors of the former Deutsche Bundespost are also considered to be offices as far as personnel matters are concerned. For them, Section 76 (1) BPersVG is decisive. The co-determining body, however, is not a staff council, but the works council formed by the respective company . The details are regulated in § 28 , § 29 of the Postal Personnel Law Act.

Staff council elections

Status of the staff council

The number of members in the staff council depends on the number of employees in the agency. Similar to the works council, if there are a certain number of employees, individual members of the staff council must be released from duty so that they can devote themselves entirely to staff council work. As a rule, the chairman of the staff council is released first. Otherwise, the staff council activity is a voluntary activity that usually takes place during working hours . Staff council members may neither be preferred nor disadvantaged because of their work. The staff council consists i. d. Usually from a chairperson and one or more deputies as well as other members. The chairperson chairs the regular meetings, in which decisions are made by majority vote, and represents the staff council vis-à-vis the management and in court proceedings . Staff councils usually have an office and offer regular consultation hours for employees. You also have the right to use notices, company newspapers and the company's internal e-mail system and any intranet to provide information about your activities.

Duties of the staff council

general tasks

The staff council has a number of general tasks:

  • Monitoring compliance with employee rights and protection regulations, which are regulated in laws, collective agreements , service agreements and administrative regulations;
  • Receipt of suggestions and complaints from the ranks of the staff and the duty to urge the head of the department for a remedy;
  • Participation in the integration and promotion of severely disabled people in close cooperation with the representatives of the severely disabled ( Section 182 SGB ​​IX ) and foreign employees, in equality between men and women and support for youth and trainee representatives ;
  • Carrying out a staff meeting in which the staff council provides information about its activities and accepts proposals from employees; If necessary, additional meetings (also in parts of the administration) can be held; the frequency of such meetings is different in the individual employee representation laws (partly every six months, partly annually); The agency chief and representatives of the trade unions can attend these meetings .
  • the Staff Council has in settings (but not federal authorities) in some states the right to the interest of the employees at job interviews participate. He can regulate his participation in formalized selection procedures for training and further education measures by concluding a corresponding service agreement.
  • the staff council can send an advisory member to internal audits;
  • the staff council must be consulted on accident prevention and occupational safety measures ; in particular regarding the discussions between the head of the department and the security officers;
  • Joint meetings of the plenum of the staff council with the head of the respective department take place at least quarterly, in individual countries monthly, which is always attended by the representatives of the severely disabled ( Section 178 (5) SGB IX), a member of the youth and trainee representatives and the equal opportunities officer are. In these regular discussions as the most important instrument for conflict resolution and understanding with the employer, particularly important questions of general importance are to be discussed.

Since the Legal Services Act came into force on July 1, 2008, the employee representatives are also allowed to discuss legal issues with the employees, insofar as the tasks of the staff council are affected ( Section 2 (3) RDG). Previously, this question was only partially approved in the case law ( Federal Administrative Court , decision of August 18, 2003).

Participation rights

The staff representation is involved in the decisions of the agency in personnel, social, organizational and a number of other matters. Which measures of the department are subject to the involvement of the employee representatives are regulated in extensive catalogs or by means of a general clause .

Participation takes the form of:

  • of participation (measure must be carried out only with the consent of the Staff Council)
  • of participation (the department has the matter with staff representatives to discuss) and
  • the hearing (the staff representatives can express reservations about an intended measure; the administration must comment on it).

The staff councils have co-determination rights in the case of individual personnel measures, such as recruitment , dismissals , layoffs of employees, civil servants , judges and soldiers, promotions , transfers and higher groupings. Co-determination rights also exist in social matters. In an important catalog of facts there are also important co-determination rights with z. Partly with regard to personnel as well as organizational reference, as far as statutory or collective bargaining regulations do not exist (e.g. start and end of daily working hours, assessment guidelines for employees, etc.). Service agreements are regularly concluded for these facts. In the case of many other organizational measures, it is usually only rights of participation or hearing. The Federal Personnel Representation Act and the individual personnel representation laws of the states indicate here z. T. big differences. Overall, the position of the staff council is not as strong as that of the works council, especially since the Federal Constitutional Court has given priority to the politically responsible (e.g. parliament or city ​​council ) for particularly important measures .

When classifying newly hired employees in the experience levels of the TVöD / TV-L (recognition of previous professional experience according to § 16 TVöD / TV-L), the staff councils have a right of co-determination after several identical decisions by the Federal Administrative Court of August 27, 2008.

Arbitration board proceedings

The participation process, which is complicated in its details, is based on consensus . If no agreement can be reached, an arbitration board is formed which, depending on the nature of the matter, either decides in the last instance or gives the department a recommendation. If a dispute arises as to whether a matter is subject to participation, the specialist chambers of the administrative courts can be called upon to decide the dispute.

Service agreements

Service agreements are contracts that are made between the staff council and the agency, represented by its head (similar to company agreements within the framework of the Works Constitution Act ). In contrast to collective agreements , which (on the employee side) only apply to members of the respective trade union , service agreements are valid for all employees. However, service agreements are only possible where there are no final statutory or collective bargaining regulations or where these service agreements are expressly permitted. Mostly it is about questions of the technical equipment, the working time regulation and working time recording and about additional social measures like company sport or other company health promotion or the avoidance of bullying . Section 18 of the collective agreement for the public service (TVöD) provides for such a service agreement to regulate performance remuneration.

Other holdings

The staff councils are also to be involved in accordance with further legal norms and collective agreements. According to Section 2 (1) of the collective bargaining agreements on protection from rationalization of January 9, 1987, they are to be informed in good time and comprehensively about a planned rationalization measure. The employer has to discuss the personnel and social effects of the rationalization with the staff representatives. According to Section 20 of the Part-Time and Temporary Employment Act , the staff council must be informed of the number of temporary employment relationships. According to § 11 ASiG, the staff council sends 2 representatives to the occupational safety committee . He is involved in the company commissions on performance remuneration (§ 18 TVöD) and health protection in social and educational services.

Youth and trainee representatives

In addition to the staff councils , youth and trainee representatives (JAV) are elected in departments with at least five employees in training . For these, all under 18-year-olds as well as those in training (including candidates and interns over six months of employment) are entitled to vote and up to a certain age (for example in the area of ​​the Federal Personnel Representation Act: 26 years, in North Rhine-Westphalia: 27 years) eligible, candidates in the federal administration only at the main office. The youth and trainee representatives are not independent bodies, but are bound to the existence of a staff representation.

The JAV works together with the staff council regarding the interests of young people and trainees . Representatives of the respective other body can take part in the respective meetings in an advisory capacity. In matters that affect employees in training, the entire JAV can usually participate in the staff council meetings and has voting rights in the relevant matters. Similar to the staff meeting , the JAV has to hold at least one meeting of all employees to be trained every year.

Representatives for severely disabled employees

The staff council, as the general representation of the employees' interests, works closely with the elected representatives of the severely disabled (SBV) as a special representation of interests ( Section 182  (1) SGB IX). The Representative for the Severely Disabled (SBV) has the right to take part in all meetings of the Staff Council and its committees ( Section 178 (4) SGB IX) as well as all quarterly or monthly discussions regulated by Land law (Section 178 (5) SGB IX) and discussions on special occasions of the plenary session of the staff council with the employer . The legal question of whether the SBV also has the right to participate in the constituent meeting of the staff council is not undisputed (VG Ansbach, decision of April 19, 2005).

Current legal development

The state parliament in North Rhine-Westphalia passed a law on September 19, 2007, which made a considerable restriction of the co-determination rights as part of a reform of the State Personnel Representation Act (LPVG NRW). The changes to the LPVG came into force on October 17, 2007. On July 5, 2011, the state parliament passed an amendment to the law that withdrew the changes made at that time under the black-yellow coalition with the help of the new majority from the SPD-Greens-Left. Some new participation rights were also anchored. According to the press reports, North Rhine-Westphalia is the "co-determination state No. 1".

Legal situation in Austria

The legal situation of the employee representation in Austria is regulated similarly as in the Federal Republic of Germany. The Austrian Federal Personnel Representation Act applies to federal employees; state law regulations apply to employees of the federal states.


Comments on federal staff representation law

See: Federal Personnel Representation Act # Literature

Comments on the right of representation in the federal states

  • Lothar Altvater, Christian Coulin, Wolf Klimpe-Auerbach, Ewald Bartl, Hanna Binder, Hermann Burr, Michael Wirlitsch: State Personnel Representation Act Baden-Württemberg. Basic comment. 3. Edition. Frankfurt am Main 2016, ISBN 978-3-7663-6332-9 .
  • Bernd Schaufelberger, Josef Schneider: State Personnel Representation Act Baden-Württemberg. Text edition with short commentary 6th edition. Stuttgart u. a. 2011, ISBN 978-3-415-04624-5 .
  • Rudolf Aufhauser, Norbert Warga, Peter Schmitt-Moritz: Bavarian Personnel Representation Act. Basic comment. 6th edition. Frankfurt am Main 2011, ISBN 978-3-7663-6089-2 .
  • Lore Seidel, Wolfgang Hamer: Personnel Representation Act Brandenburg. Basic comment. 4th edition. Frankfurt am Main 2011, ISBN 978-3-7663-3956-0 .
  • Wolfgang Daniels: Personnel Representation Act Berlin. Basic comment. Frankfurt am Main 2010, ISBN 978-3-7663-3992-8 .
  • Detlef Fricke, Martina Dierßen, Karl Otte, Herbert Sommer, Klaus Thommes: Lower Saxony Personnel Representation Act. Basic comment. 3. Edition. Frankfurt am Main 2009, ISBN 978-3-7663-3926-3 .
  • Torsten von Roetteken and Christian Rothländer (eds.), Norbert Breunig, Bernhard Burkholz, Friedrich Dobler, Roger Hohmann, Hendrik Heitmann, Michael Kröll: Hessisches Arbeitsienstetenrecht - HBR, Part I: Personnel Representation Law . 70th edition. (Loose leaf May 15, 2012), R. v. Decker, Heidelberg, ISBN 978-3-7685-9511-7 .
  • Christian Bülow: State Personnel Representation Act of North Rhine-Westphalia - Text Collection for Practice , Richard Boorberg Verlag Stuttgart 2014, ISBN 978-3-415-05426-4
  • Christian Bülow: State Personnel Representation Act NRW - Practice Commentary and Book of Forms for the Office , Richard Boorberg Verlag Stuttgart 2016, ISBN 978-3-415-05616-9
  • Neubert, Sandfort, Lorenz, Kochs: State Personnel Representation Act. NDS Verlag, Essen, ISBN 3-87964-222-2 .
  • Horst Welkoborsky, Gunnar Herget: State Personnel Representation Act North Rhine-Westphalia. Basic comment. 5th edition. Frankfurt am Main 2011, ISBN 978-3-7663-6124-0 .
  • Susanne Gliech, Lore Seidel, Klaus Schwill: Thuringian Personnel Representation Act . Basic comment. 4th edition. Frankfurt am Main 2010, ISBN 978-3-7663-3935-5 .

Monographs, magazines

  • Lothar Altvater: The staff council meeting. The Staff Council (PersR) 2008, 228.
  • Erhard Baden: Enforcement of staff council rights. PersR 2008, 266.
  • Franz Josef Düwell: The admissibility of legal advice by staff councils. PersR 2008, 306.
  • Heiko Peter Krenz: The participation procedures in staff representation law. PersR 2008, 244.
  • Michael Kröll: The refusal of consent. PersR 2008, 259.
  • Heinrich Jordan: Legal position of the staff council members. PersR 2012, edition 6, pp. 257–261.
  • Ralf Trümner, Karsten Sparchholz: Third-party personnel deployment by employees and staff representation law. PersR 2008, 317.
  • Helmut Lopacki: Staff Council and Equal Opportunities Officer . In: The staff representation . No. 10/11 , 2018, ISSN  0476-3475 , p. 374-383 .
  • Journal Der Personalrat - Personnel Law in the Public Sector (PersR). Bund-Verlag Frankfurt am Main, ISSN  0175-9299

Web links

Legal texts

For German laws and election regulations, see under Personnel Representation Act

Individual evidence

  1. Hueck / Nipperdey / Dietz: Law on the Order of National Work with all implementing ordinances and the law on work in public administrations and companies with its implementing ordinances , Commentary, 2nd edition. Munich and Berlin (CH Beck) 1937.
  2. Supplement No. 2 to the Law and Ordinance Gazette for Greater Hesse of June 11, 1946 (No. 17), p. 29 ff.
  3. ^ Norbert Breunig: On the history of the development of the basic right of co-determination in the state of Hesse. Arbeit und Recht (ArbuR) 1987, pp. 20-24.
  4. [1] Decision of August 18, 2003, 6 P 6.03; PersR 2003, 498; PDF
  5. BVerwG, u. a. Decision of August 27, 2008, 6 P 11/07
  6. ^ VG Ansbach, decision of April 19, 2005, AN 7 P 04.00739
  7. See for details under State Personnel Representation Act (North Rhine-Westphalia) .