Maritime Works Council

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A maritime works council is a works council that can be formed in the maritime operation of a shipping company with merchant ships sailing under the flag of the Federal Republic of Germany .

Legal basis

Sections 114 to 116 of the German Works Constitution Act (BetrVG) form the legal (statutory) basis for the formation, responsibility and management of sea works councils and shipboard representatives . On the one hand, it regulates that the BetrVG also applies to civil merchant shipping; on the other hand, it stipulates the special features and exceptions to the works councils in businesses and companies on land.

With the assignment of the maritime works councils to the Works Constitution Act, it is made clear that they are not responsible for the maritime operations of the public service and the German Navy . The Federal Personnel Representation Act (BPersVG) applies to ships and crews in the public service, and the Soldier Participation Act (SBG) applies to the German Navy .

Section 114 of the BetrVG defines the scope of the provisions for maritime works councils and the exceptions to them. Section 115 BetrVG deals with the election, term of office and management of the on-board representation; Section 116 the corresponding provisions for the maritime works council.

scope

Objectively and spatially

The provisions on sea works councils and board representatives apply to shipping companies that operate merchant shipping and are based in Germany. The provisions also apply to comparable companies if they operate commercially as a seafarer and perform an employer role for the captain and crew members.

The entirety of the merchant ships of a shipping company is considered to be a sea ​​operation within the meaning of the law, provided that they operate under the federal flag . Ships that are flagged out, i.e. those sailing under the flag of other countries, do not belong to the scope of the law, even if they belong directly to the same shipping company. Also not part of the actual sea operations are ships that usually return to the seat of a shore operation within 24 hours after leaving the port.

The areas of a shipping company that primarily perform functions on land form the company's land operations, for which the general provisions of the BetrVG apply.

Personally

Sea works council and board representatives are exclusively responsible for the crew members of the ships. Crew members are the persons named in Section 3 (1) of the Maritime Labor Act , i.e. all persons who work on board the ship, regardless of whether they are employed by the shipowner or another person or are self-employed, including those involved in their professional training Employees (crew members). The master is not considered a crew member (Section 114 (6) BetrVG), but as a manager within the meaning of Section 5 (3) and (4) BetrVG.

A youth and trainee representative is not formed in the lake company, if the requirements are met, it can be formed in the land company.

Formation or election of the maritime works council

Eligibility to vote

Sea works councils are elected in all maritime operations that employ at least five employees with voting rights . All crew members belonging to the shipping company are entitled to vote , i.e. not the employees of the associated land enterprise. As executive employees, the masters are not entitled to vote either, as they are not considered to be crew members, Section 114 (6) BetrVG.

eligibility

In shipping companies that have at least eight ships or that usually employ more than 250 crew members, crew members who are at least 18 years old and who have been a member of the crew of a ship flying the federal flag for one year are eligible for the maritime works council . In smaller shipping companies, i.e. with fewer than eight ships or 250 crew members, only those employees of the shore company who are entitled to vote can be elected. The employer can, however, agree that crew members can also be elected to the maritime works council in such operations.

Size of the maritime works council

The sea works councils are significantly smaller than the normal works councils. However, the shipboard representatives also belong to the system of the marine works agency . The sea works council usually exists in sea operations

  • 5 to 400 crew members entitled to vote from one person,
  • 401 to 800 crew members with voting rights from three members and at
  • over 800 crew members entitled to vote from five members.

Election, term

In the absence of special regulations, the general provisions of the BetrVG apply to the electoral period (term of office) of the marine works councils. As a rule, the elections take place every four years. Otherwise, the regulations laid down in Part Two of the Maritime Shipping Electoral Code (WOS) apply to the implementation of the elections for the maritime works council . However, the deadlines have been extended (Section 116 (2) No. 6 BetrVG). The electoral board is appointed by the maritime works council. If there is no sea works council, it is appointed by the general works council; if there is no such council, the electoral board is appointed by the employer together with the unions represented in the sea operation .

In contrast to the normal works council elections, a nomination is already valid if it is signed by at least three crew members who are entitled to vote. The simplified election procedure according to § 14a BetrVG cannot take place (§ 116 Abs. 2 Nr. 5 BetrVG).

Management of the maritime works council

In principle, the provisions for the management of the works councils also apply to the marine works councils. In Section 116 (3) BetrVG, however, a number of special regulations are set out that are adapted to the particularities of sea operations. The following list is not exhaustive.

  • If the maritime works council has to comment on a submission by the employer within a certain period of time, it has a quorum, in deviation from Section 33 (2) BetrVG, if all its members have been properly summoned, even if the prescribed minimum number of members has not appeared at the meeting ( Section 116 (3) No. 1 BetrVG).
  • Members of the maritime works council who are not to be released according to § 38 BetrVG must be employed in such a way that they are not prevented from performing their work as a works council. The workplace is to be determined by the employer in agreement with the maritime works council (Section 116 (3) No. 2 BetrVG). You can therefore also be used on land without losing your status as a crew member and thus your eligibility.
  • In Section 116, Paragraph 3, Nos. 5 to 8 BetrVG, the provisions on consultation hours, workplace inspections and board meetings, which are adapted to the conditions of seafaring, are regulated.
  • Works meetings according to §§ 42 to 46 BetrVG do not take place.

Competence of the maritime works council

The maritime works council is not superordinate or subordinate to the shipboard representatives . However, it is responsible for the following cases (Section 116 (6) BetrVG):

  • If a matter or action by the employer affects all or more ships or the crew members of all or more ships in the maritime operation,
  • if an agreement has not been reached between the master and the respective on-board representation and the on-board representation submits the matter to the marine works council, or
  • in matters in which the captain of a ship is not authorized to make a decision according to statutory provisions or the powers delegated by the shipping company.

literature

  • Fitting / Engels / Schmidt / Trebinger / Linsenmaier, Commentary on the Works Constitution Act, Verlag Franz Vahlen, 29th edition, Munich, 2018, ISBN 978-3-8006-5594-6