The co determination of the works council
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The co-determination of the works council. Principle: Trustful cooperation Monthly conferences. Facts about the works council. Legal basis : Works Council Constitution Act (Betriebsverfassungsgesetz-BetrVG 1972) Formation: in companies with at least 5 employees

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The co-determination of the works council

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The co determination of the works council

The co-determination of the works council

Principle:

Trustful cooperation

Monthly conferences


Facts about the works council

Facts about the works council

  • Legal basis: Works Council ConstitutionAct (Betriebsverfassungsgesetz-BetrVG 1972)

  • Formation: in companieswithat least 5 employees

  • Term ofoffice: 4 years

  • Size:depends on thenumberofemployees

  • Performance oftasks: in particularbyemployeesreleasedfromduties (DOR: 3)

  • Area ofresponsibiltity:co-determination in operatingmatters


The different types of co determination

The different types of co-determination

Rightofconsulation, informationandnotification

Example: installationandre-organisingofworkplaces, changingof operational prodecure, human resourcesplanning

Righttobeheard

Example: dismissalof an employee

Rightofapprovalandrighttorefuseconsent

Example: newemploymentor in caseoftransferofemployees

Rightof initiative

Example: operatingagreements IT area

Rightsofparticipation

Example: § 87 BetrVG – furtherinformationseelater


Main rights of co determination of deutsche oper am rhein

Main rights of co-determination of Deutsche Oper am Rhein

  • True rights of co-determination, § 87 BetrVG

  • Individual personnel measures, § 99 BetrVG

  • Termination of employment relationships, § 102 BetrVG

    However: Tendenzbetrieb § 118 BetrVG (No co- determination in artistic areas)


1 true co determination

(1) True co-determination

Method: previous agreement to employer´s intended measure; the employer has to involve the works council on its own initiative; the works council has a partial right of initative

Basis: catalogue of § 87 I BetrVG, provided there is not a statutory or collective rule and the measure shall apply on a collective basis


Examples from the catalogue 87 i betrvg

Examples from the catalogue, § 87 I BetrVG

  • Questions concerning the organisation of the company and the behaviour of the employee

  • Starting and ending of the daily working time as well as breaks and the allocation of working time in respect of individual days of the week

  • temporary shortening or lengthening of working time

  • Introduction and application of technical equipment which are intended to observe the employee‘s behaviour and efficiency

  • Form and administration of social services whose sphere of influence is limited to the company or enterprise


The co determination of the works council

Legal consequences of missing agreement

Arbitration committee (Einigungsstelle):

The arbitration committee is an in-house arbitration board. It meets, negotiates and decides whenever the work council and the employer cannot find any agreement

It is a complexe and an expensive procedure


Legal consequences of missing cooperation

Legal consequences of missing cooperation

The work council has the right to demand the deletion of the unconstitutional measure and may claim for omission in future


Co determination regarding to individual personnel measures 99 betrvg

Co-determination regarding to individual personnel measures § 99 BetrVG

Types of personnel measures:

  • hiring

  • transfer

  • payment


The co determination of the works council

Type ofco-determinationregardingto individual personnelmeasures

information, consentandrefusaltoconsent

  • Employer´sobligationtoinform

  • priornoticeofthepersonnelmeasure

  • Presentationoftheapplicationdocuments


The co determination of the works council

Type ofco-determinationregardingto individual personnelmeasures

2. Consent of the works council

  • The employer has to obtain approval for the measure


The co determination of the works council

3. Right to refuse the consent

Requirements:

Compliance of one of the 6 facts of § 99 II BetrVG

  • Example: right to refuse the consent if a vacancy notice wasn´t published in the company according to § 93 BetrVG (number 5)

    Observance of a space of time of one week, stating reasons for the refusal in written form; § 99 III BetrVG, otherwise: fiction of consent (Zustimmungsfiktion)


The co determination of the works council

Legal consequences in case of the refusal to consent to individual personnel measures

  • Employer is not allowed to carry out the measure

    Exception: in case of urgency (§ 100 BetrVG): preliminary execution is possible

  • Consent of the work council can be replaced by labour court


The co determination of the works council

co-determinationregardingtotermination

Typesofparticipation: therighttobeinformed, tobeheard, tocommentandtoobject

The righttobeinformed

The employerisobligatedtoinformtheworkcouncilabouttheintendedterminationandhastoprovidereasonsforit


The co determination of the works council

The right to demand a hearing

The employer must consult the work council before giving notice of termination

  • Legal consequences for missing consultation:

    The termination is invalid


The co determination of the works council

The righttocomment

The workcouncilcan

  • giveitsconsenttothetermination

  • keepsilent (consequence: fictionofconsent (Zustimmungsfiktion) in a week´s time)

  • objecttodetermination (§ 102 III BetrVG)


The co determination of the works council

Legal consequences in caseofobjection

Atfirstcontinuanceoftheemploymentunderthefollowingrequirements

  • theemployeedemandsatlabourcourtthedeclarationtheworkrelationshiphas not beenrisovledbytermination


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