Economic affairs

from Wikipedia, the free encyclopedia

Economic affairs is a legal term from German works constitution law . It describes a topic of entrepreneurial activity in which there are individual participation rights of the works council. The economic matters are regulated in § 106 to § 113 BetrVG . In this context, the law also provides for further obligations of the entrepreneur, which do not exist towards the works council, but towards the workforce or individual employees.

The individual participation rights in economic matters

Participation rights in economic matters within the meaning of Section 106 ff. BetrVG include:

The reconciliation of interests and the social plan require a change in the company , which is described in more detail in Section 111 BetrVG.

Further obligations of the entrepreneur in this area

This thematic context also includes two other rights that are not participation rights in the narrower sense, as they concern claims of the workforce or individual employees against the employer and entrepreneur:

The importance of "economic matters" in works constitution law

Economic matters are one of the four subject areas in which the works council has rights of participation under the BetrVG. The other subject areas are

  • the "social affairs" ( § 87 to § 89 BetrVG),
  • the rights under the title "Design of the workplace, work flow and work environment" ( § 90 , § 91 BetrVG) and
  • personnel matters ( § 92 to § 105 BetrVG). Personnel matters are again subdivided into
    • General personnel matters ( § 92 to § 95 BetrVG) and the
    • Individual personal measures such as transfer ( § 95 BetrVG) or termination ( § 102 BetrVG).

The participation of the works council in economic matters goes beyond the traditional area of ​​work of the works councils (regulatory power in internal matters). The economic committee provides the works council with information that the entrepreneur needs to run his company (and not just his business), and he even has the opportunity to influence the decision-making process in the core area of ​​entrepreneurial activity via the instrument of balancing interests. The participation rights in economic affairs thus have thematic similarities with employee participation rights in entrepreneurial matters under the One-Third Participation Act or the Codetermination Act . Due to this peculiarity, the interlocutor of the works council is referred to in the law as an entrepreneur and not as an employer as in other works constitution law.

Responsible works council

Another consequence of this reference to the entrepreneur is evident in companies that run several businesses. In this case, the economic committee can only be appointed by the general works council ( Section 47 BetrVG), since it is about the company as a whole and not about individual companies. The general works council is also responsible for the reconciliation of interests whenever there is a change with which the entire company and not just individual companies are to be reorganized ("uniform company concept"). In the case of the social plan, on the other hand, case law is with the allocation of responsibility rather reluctant to approach the general works council; it is said that the desired fair level of compensation or alleviation of the disadvantages for the losers of the operational change has many regional or local connections and therefore usually has to be clarified on site with the works council responsible for the operation.

On the history of participation in economic affairs

The beginnings of the involvement of the works council in economic affairs of the entrepreneur go back to the Works Council Act 1920 (BRG). participation was limited to one briefing at the time. The employer had to submit a quarterly report “on the situation and progress of the company ... and on the expected labor demand” (Section 71 BRG). In larger companies (with more than 300 employees), he also had to present and explain a company balance sheet and profit and loss account for his company to the works council. Today's change in operations according to § 111 BetrVG had its predecessor in § 74 BRG. According to this regulation, the employer had to “get in touch” with the works council in the event of expansion, restriction or closure of the company or the introduction of new technologies or working methods; Measures to avoid hardship in the event of layoffs (corresponds to today's social plan) were also agreed.

Following on from this tradition, the Works Constitution Act (BetrVG 1952) came into being in the Federal Republic of 1952 after the Second World War . Here the law speaks of the economic committee for the first time, but it is designed as a joint committee made up of equal numbers by the employer and the works council. The purpose of the committee was to provide information and not, as it is today, advice . In § 72 BetrVG 1952 the instrument of the reconciliation of interests was created and § 74 BetrVG 1952 already provided for the compensation of disadvantages when deviating from the reconciliation of interests (today § 113 BetrVG). The regulations to avoid hardship in the event of mass layoffs (today social plan) were understood as a personal measure and were recorded in § 66 BetrVG 1952.

The Works Constitution Act, which was fundamentally amended in 1972 and which is still in force today with later changes, has not changed the system of participation in economic affairs, but has brought about some changes in detail. The economic committee is no longer a joint committee, but is made up entirely of the works council ( Section 107 BetrVG). The entrepreneur is now also obliged to consult the economic committee ( Section 106 (1) BetrVG). In addition, to avoid ambiguity, there is a catalog of matters that the legislature expressly (but not conclusively) describes as economic matters that must be informed and advised on ( Section 106 (3) BetrVG). In the area of ​​operational changes (social plan, balance of interests, compensation of disadvantages), the law is now formulated more clearly and the social plan now belongs to the area of ​​co-determination that can be enforced via the arbitration board.

Further - smaller - changes were only brought about by the Works Constitution Reform Act of July 23, 2001. The catalog of advisory duties in the economic committee now also refers to “corporate environmental protection” ( Section 106 (3) No. 5a BetrVG) and in companies with more than 300 employees, the works council can use an external (fee-entitled) advisor when negotiating a change of company consult ( § 111 sentence 2 BetrVG).

Another small, but practically significant change was made to Section 111 Sentence 1 BetrVG by the Works Constitution Reform Act 2001. It was previously regulated there that the participation rights in the event of company changes (social plan, balance of interests) and the related compensation for disadvantages according to § 113 BetrVG should only apply to companies with more than 20 employees. As a result of the connection to the company , especially in the retail sector, large companies operating across Germany that sell their products through small, independently managed branches, could escape the social plan obligation in the event of company changes (e.g. when individual branches were closed or relocated). Because depending on how the branch is independent, it may be that each branch represents its own business. In many cases, however, these companies are so small that the necessary threshold of more than 20 employees is not reached. As a reaction to this development in operational practice, the threshold value of Section 111 Sentence 1 BetrVG has no longer been related to the company since 2001 , but to the company . This means that the employees of all businesses in a company are considered together when calculating the threshold value.

Comparison with similar participation rights in staff representation law

In federal staff representation law, there is no direct equivalent to the involvement of the works council in economic matters. In particular, there is no obligation of the public employer to report to the economic committee. There are, however, scattered individual participation rights that have similarities to economic matters. According to § 78 BPersVG, the staff council participates in the “dissolution, restriction, relocation or merging of departments or essential parts of them”. However, this right of participation is traditionally related to the design of the consequences of such changes ( implementation planning ) and not - as is the case with the reconciliation of interests in works constitution law - also to the question of whether the changes should be implemented at all ( target planning ).

The requirements for a social plan are completely different from those in works constitution law. While in works constitution law the social plan is linked to the concept of company change according to Section 111 BetrVG, it is linked to the term “rationalization measure” according to Section 75 (3) No. 13 BPersVG. A rationalization measure essentially requires a gain in productivity, so that the mere downsizing or even the closure of an office is not included. However, if there is a rationalization, no threshold values ​​have to be observed; A social plan can also be concluded if it is only about compensating or alleviating the disadvantage for a single affected employee.

The federal states' staff representation law tries to go its own way in this area, but the scope for regulations that are more friendly to staff councils is, in view of the constitutionally guaranteed comprehensive responsibility of governments vis-à-vis parliaments, significantly less than in works constitution law.

Individual evidence

  1. ↑ Federal Labor Court December 11, 2001 - 1 AZR 193/01 - BAGE 100, 60 = AP No. 22 to Section 50 BetrVG 1972 = DB 2002, 1276 = NZA 2002, 688.
  2. ↑ BAG 3 May 2006 - 1 ABR 15/05 - AP No. 29 to § 50 BetrVG 1972.
  3. ↑ Federal Law Gazette I p. 1852.
  4. ↑ Federal Administrative Court , decision of March 1, 1993 - 6 PB 12/92, PersR 1993, 315.