Approval replacement procedure (Section 99 (4) BetrVG)

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In Germany allowed an employer a worker in establishments with 20 or more regularly employed employees entitled to vote, only with the consent of the works council set , once or regroup or move . If the works council refuses to give its consent, the employer has the option of having the legality of the refusal of consent checked through the labor court consent replacement procedure in accordance with Section 99 (4) of the Works Constitution Act and, if necessary, to have the non-granted consent replaced by the labor court . He can then carry out the individual personnel measure.

Legal remedy : If the personnel measure is "urgently required", the employer can initially carry it out provisionally despite the works council's refusal of consent in accordance with Section 100 , but must apply to the responsible labor court for a consent replacement procedure within 3 days .

Admissibility of the consent replacement application

Employer's authorization to apply

The employer's authorization to apply results from Section 99 (4) BetrVG.

Other participants

Another participant is the works council responsible for the respective personnel measure .

According to the case law of the Federal Labor Court (BAG), the employees concerned are not involved within the meaning of Section 83 (3) ArbGG.

text

The employer has to apply: "The approval of the works council to replace <certain personal measure>."

Certainty

The employer's application must be sufficiently specific within the meaning of Section 253 (2) No. 2 ZPO. The type of personnel measure - recruitment, transfer, grouping or regrouping in a certain VergGr. - and the person concerned are identified with sufficient precision. If necessary, the court must interpret an application, taking into account all the submissions made by the applicant. A sufficient description of the subject of dispute within the meaning of Section 253 (2) No. 2 ZPO therefore requires the employer to state whether the personnel measure for which the consent of the works council is to be replaced is to be undertaken for an indefinite or limited period and, if applicable, by what point in time it should be carried out for a limited period. Only then will it be sufficiently clear what should be the subject of the works council's consent requested by the employer.

Combination with a declaration request

It is sometimes disputed whether the works council has already given its consent based on the legal fiction according to Section 99 (3) BetrVG. Then the employer can first and foremost apply for the existence of consent to be established and, alternatively, for the consent to be replaced.

According to an earlier decision by the BAG, even if only an application for replacement of consent is submitted, but the existence of (fictitious) consent emerges in the course of the proceedings, the judicial determination should be made even without an express application for a declaration that consent to the measure in question is deemed to have been granted .

If the employer applies for the replacement of the works council's consent to a planned personnel measure and it turns out in the course of the proceedings that the works council's consent has already been granted due to a lack of timely or significant refusal of consent, the court shall, even without an express request by the To decide that the consent of the works council is deemed to have been granted.

Need for legal protection

The necessary need for legal protection presupposes

  • that Section 99 (1) BetrVG is applicable (company with generally more than 20 employees entitled to vote);
  • there is a personal measure within the meaning of Section 99 (1) BetrVG
  • a (bogus) consent according to § 99 para. 3 BetrVG has not already been given
  • the employer still intends to take the personnel action;
  • approval is not sought for a personnel measure that was only in the past.

The need for legal protection does not apply if

  • because the decision on the application for replacement of consent will not foreseeably become legally binding before the end of the personnel measure;
  • the employer again requests the works council to approve a personnel measure affecting the same employee. Accordingly, he can also bring several consent replacement procedures - one after the other or at the same time - to the court. Despite the same legal protection objective and procedural aspects, these have different objects.

Doctrine of the double application: 3-day deadline for preliminary implementation

The consent replacement application is not bound to a time limit. The works council cannot force the employer to apply for a substitute consent. However, if the employer provisionally carries out a personal measure according to § 100 BetrVG , it follows from the three-day period of § 100 BetrVG according to the prevailing "doctrine of the double application" that both the application for consent replacement according to § 99 BetrVG and the application Determination of the urgent necessity according to § 100 BetrVG is to be made pending at the labor court within a period of three days.

Inadmissible as a re-application in the annulment procedure according to § 101 BetrVG

An application for replacement of consent that is submitted as a re-application in the context of a procedure according to Section 101 is inadmissible: "The lack of a legal reason for the refusal of consent can only be asserted in the consent replacement procedure provided for this in accordance with Section 99 (4) BetrVG; ​​in the procedure according to Section 101 sentence 1 BetrVG, such a submission must be disregarded. The procedure according to § 101 sentence 1 BetrVG serves to safeguard the right of co-determination of the works council, while the procedure according to § 99 para. 4 BetrVG addresses the judicial dispute about the merits of the works council's refusal of consent the intended personnel measure of the employer. "

No deal

A controversial decision on a consent replacement application does not come about if the personnel measure has been dealt with and the employer declares that the dispute has been dealt with. In contrast to the judgment procedure, it is not checked whether the application was admissible and justified at all before it was dealt with. The proceedings will then be discontinued in accordance with Section 83a (2) ArbGG.

Justification

A consent replacement request is justified if

  • the approval procedure pursuant to Section 99 (1) sentences 1 and 2 BetrVG has been properly initiated;
  • - and - an approval according to § 99 Abs. 3 BetrVG is not to be faked and is therefore already given
  • - and - there is no reason to refuse consent within the meaning of Section 99 (2) BetrVG,
    • which has been asserted in writing by the works council within the one-week period of Section 99 (3) sentence 1 BetrVG,
    • at the relevant time of the court decision.

See also

Individual evidence

  1. ↑ BAG, decision of December 14, 2004 - 1 ABR 54/03 - NZA 2005, 424 (425)
  2. ↑ BAG of December 14, 2004 - 1 ABR 54/03 - NZA 2005, 424 (425)
  3. ↑ BAG, decision of January 23, 2008 - 1 ABR 74/06 - NZA 2008, 603 - Rn. 17th
  4. ↑ LAG Hessen, decision of July 31, 2007 - 4 TaBV 35/07 - juris Rn. 18 f.
  5. ↑ BAG, decision of October 18, 1988 - 1 ABR 33/87 - juris Ls. = NZA 1989, 355
  6. ↑ The BAG is inconsistent here. As a question of the need for legal protection dealt with in BAG, decision of August 15, 2012 - 7 ABR 6/11 - juris Rn. 12 = NZA-RR 2013, 161; as a question of justification: BAG, decision of January 23, 2008 - 1 ABR 74/06 - Rn. 19 f. = NZA 2008, 603
  7. ↑ The BAG is inconsistent here. Sometimes an inadmissibility, e.g. B. BAG, decision of June 17, 2008 - 1 ABR 20/07 - Rn. 10 = NZA 2008, 1139; BAG, decision of June 23, 2010 - 7 ABR 3/09 - Rn. 18 = NZA 2010, 1361, partly assumed to be unfounded: BAG, decision of June 10, 2013 - 7 ABR 91/11 - juris Rn. 17 = NZA 2013, 1296 and probably also BAG, decision of January 25, 2005 - 1 ABR 61/03 - NZA 2005, 1199 (1201)
  8. ↑ BAG, decision of December 8, 2010 - 7 ABR 99/09 - Rn. 12
  9. ^ LAG Hamm, decision of April 1, 2011 - 10 TaBV 41/10 - juris Rn. 87
  10. ^ LAG Hamm, decision of April 1, 2011 - 10 TaBV 41/10 - juris Rn. 90 f .; BAG, decision of March 18, 2008 - 1 ABR 81/06 - juris Rn. 20 = AP BetrVG 1999 setting no. 56; BAG, decision of January 16, 2007 - 1 ABR 16/06 u. 1 ABR 12/06 - NZA 2007, 1456; otherwise BAG, decision of July 1, 2009 - 4 ABR 18/08 - NZA 2010, 290
  11. ↑ BAG, decision of September 15, 1987 - 1 ABR 44/86 - NZA 1988, 101
  12. ^ BAG, decision of November 21, 1978 - 1 ABR 91/76 - juris Ls. = AP No. 3 to § 101 BetrVG 1972
  13. ↑ BAG, decision of April 26, 1990 - 1 ABR 79/89 = AP § 100 BetrVG 1972 No. 5 Ls.
  14. ↑ For classification as an admissibility or justification question, see above under admissibility
  15. ↑ On the inadmissibility of postponing reasons for refusal of consent cf. z. B. BAG, decision of November 17, 2010 - 7 ABR 120/09 - juris Rn. 34
  16. ↑ See BAG, decision of January 25, 2005 - 1 ABR 61/03 - NZA 2005, 1199 Os.

(Processing status: 11/2013)