Trend mode

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A company with a tendency , also a company with a tendency , is a legal term from the German works constitution law , the law of the fundamental order of cooperation between employers and the company interest representation chosen by the employees .

The concept of tendency operation

A company with tendencies is a company in which the economic orientation (profit making) is not in the foreground, but (as stated in the law) political, educational, scientific or artistic goals (this list is not complete, for details see § 118 para. 1 BetrVG).

Examples

  • The party headquarters of the parties represented in the Bundestag in Berlin. All parties represented in the Bundestag employ workers in their party headquarters who, together with the other facilities of the party headquarters (rooms, equipment, means of communication) form the company that is run by the party as an entrepreneur. The party as an entrepreneur does not want to make a profit with the party headquarters, but wants to use it to exercise political influence and gain votes. With its business called party headquarters, the party is pursuing political goals, which is why these businesses belong to the trend businesses within the meaning of Section 118 (1) BetrVG.
  • The trade unions and employers' associations also set up and operate businesses (administrative offices, educational institutions, meeting places, research institutes, publishers, etc.) to implement their goals. In these companies, too, it is not about earning money, but about promoting the interests of the association. These interests are referred to in the law as "coalition political goals". The term coalition is based on the designation of the trade unions and employers' associations as "coalition partners" and their fundamentally guaranteed "freedom of association". It has nothing to do with the concept of a coalition to form a government or even with military coalitions (“coalition troops”).
  • The entire area of ​​business activity of non-profit organizations is not shaped by the goal of making a profit. Therefore, all companies that operate these associations to achieve their association goals can be companies with a tendency within the meaning of Section 118 (1) BetrVG. This applies even if these clubs or associations operate hospitals, emergency services, children's facilities, etc. that do not differ in any way from comparable publicly owned institutions.
  • Last but not least, the production company in which a press company prints its newspaper is also a trend company. This is obvious if the press product is ideologically and politically oriented, since the entrepreneur is not only interested in the profit but also in the message that is to be conveyed. The tendency protection also applies by virtue of the express legal clarification in Section 118 (1) No. 2 BetrVG for the entire area of ​​"reporting and expression of opinion", i.e. also for purely economically oriented press products, even for the advertising section of a daily newspaper.

The privileges of companies with a tendency according to § 118 BetrVG

The provisions of the Works Constitution Act do not apply to companies with a tendency to “insofar as this is contrary to the nature of the company or company” ( Section 118 (1) sentence 1 BetrVG). From a legal point of view, this is a so-called general clause , which is to be interpreted and filled with life by the case law.

In principle, there is no right of co-determination under two conditions:

  • First of all, it has to be a measure against a tendency carrier. This is an employee who can exert a decisive and responsible influence on the realization of trends.
  • On the other hand, the concrete measure must be related to tendencies and open up the possibility that the intellectual and idealistic goals of the company and their realization can be at least seriously impaired by the participation of the works council.

Restrictions on the participation rights of the works council are most likely to be considered in the context of participation in "personnel matters" ( § 92 to § 104 BetrVG). For example, the works council is to be informed in principle in accordance with Section 99 (1) BetrVG when recruiting and relocating tendencies, but according to the case law of the Federal Labor Court, it should not have a right to refuse consent under Section 99 (2) BetrVG , even if it is the assertion of reasons not related to tendencies is possible.

In addition, the legislature has expressly excluded or at least decisively restricted the application of individual participation rights from the Works Constitution Act with regard to the subject area of economic matters . In detail:

  • Sections 106 to 110 of the BetrVG do not apply to companies with a tendency to operate. This means that you cannot generally form an economic committee in companies with a trend.
  • Only the conclusion of a social plan ( § 112 , § 112a BetrVG) remains of the participation rights in the event of operational changes . There is no reconciliation of interests for companies with a tendency, so the granting of compensation for disadvantages according to § 113 BetrVG is largely ruled out. However, according to the case law of the Federal Labor Court, claims for compensation as compensation for disadvantages are exceptionally justified even in the company with a tendency if the employer carries out a change in the company without having met his obligation to inform and advise in accordance with Section 111 BetrVG with regard to a possible conclusion of a social plan in good time .

Demarcation issues

The special privileges of religious communities (Section 118 (2) BetrVG)

According to § 118 Abs. 2 BetrVG, the application of the Works Constitution Act "to religious communities and their charitable and educational institutions without prejudice to their legal form" is excluded. This is a protection for these employers, which goes far beyond the tendency protection from § 118 Abs. 1 BetrVG; In this respect, it is at least imprecise if one also includes the privileges of religious communities under the concept of protection against tendencies. For these ideological communities, even if they are organized as public corporations of their own kind , the right of staff representation does not apply. Individual religious communities, in particular the two large Christian churches in Germany, have created employee representation rights as compensation on the basis of church law . The employee representatives have a similar position to works councils or staff councils (cf. labor law of the churches ).

Limits of tendency protection

The tendency protection according to § 118 Abs. 1 BetrVG only applies to companies and establishments that “directly and predominantly” serve the purposes listed in the law. The tendency protection can only take effect if the operational purpose itself is aligned with the tendency. Merely the appropriation of profits from a company that only pursues commercial purposes for another company that is protected against tendencies does not justify the applicability of Section 118 (1) BetrVG (example: the delivery company of a newspaper publisher).

See also

Web links

Wiktionary: tendency mode  - explanations of meanings, word origins, synonyms, translations

Individual evidence

  1. ^ BAG on September 14, 2010 , decision of the Federal Labor Court of September 14, 2010, 1 ABR 29/09
  2. ↑ BAG on April 20, 2010 , decision of the Federal Labor Court of April 20, 2010, 1 ABR 78/08.
  3. ↑ BAG, judgment of November 18, 2003 , Az. 1 AZR 637/02, full text = BAGE 108, 311 = AP No. 76 to § 118 BetrVG 1972 = DB 2004, 1372.