The digital works councils on the home straight: Bundestag adopts draft legislation

At the end of April, the German Federal Parliament (Bundestag) adopted the resolution and report of the Labour and Social Affairs Committee on draft legislation to support continued vocational training at times of structural change and to further develop training support. This legislation would insert a long-awaited news. 129 into the Works Constitution Act (Betriebsverfassungsgesetz, BetrVG), enabling works councils to perform their work digitally, at least for the duration of the coronavirus pandemic. The Act still must go to the Federal Council (Bundesrat) for consultation before it can enter into force. However, the Bundesrat is not expected to raise any objections.

Video and telephone conferencing – now also for works councils

The new rule allows works council bodies, for the time being, to adopt resolutions via video and telephone conferencing. This option is temporary and only applies until 31 December 2020, though it also applies retroactively to resolutions adopted in this manner since 1 March 2020. The understandable aim is to avoid in-person meetings as much as possible due to the high risk of infection, while ensuring that works council bodies remain able to act and take decisions.

Until now, meetings of the works council were not allowed to be held in public and resolutions could only be adopted if the majority of the works council members physically present at the meeting voted in favour of the resolution, in accordance with s. 33 and s. 30 of the Works Constitution Act. The previous legal rules did not allow resolutions to be adopted by written consent or via electronic communication channels in lieu of a meeting. For some time, the legal literature has supported the view that a resolution could also be adopted by video conference if none of the members of the works council objected. However, until now there was no legal basis for such an approach.

In times of coronavirus, the requirement that works council members be present in person inevitably leads to problems because large portions of the staff, including members of the works council, are working from home. Under the current laws, the members of the works council still would have been required to meet in person. The new s. 129 Works Constitution Act now allows works council meetings to be held and resolutions to be passed via telephone or video conferencing. The chairperson of the works council will have to decide on a case-by-case basis whether the meeting should be held in person or whether it is possible to hold the meeting via telephone or video conference. Members of the works council would then have to confirm their participation via written notice to the chairperson. The meeting may not be recorded, and it must always be ensured that third parties do not obtain knowledge of the discussions during the meeting or of the resolutions passed. These rules also apply to the activities of the economic committee and procedures before the conciliation committee. Temporarily, even the works assembly may be held via audio-visual media. The IT department at least should have plenty of work for a while.

Complying with data protection laws when using video and telephone conferencing systems

Naturally, data protection requirements must not be forgotten when applying the new rules. In particular, it must be ensured that third parties do not become aware of the content of meetings or the resolutions adopted therein. When employing video and telephone conferencing systems already used within the company, the works council must therefore ensure that certain functions which are questionable from a data protection law perspective are not accessible or, where they are available, that they are deactivated by default. The business version of such conferencing systems should be used for such purposes, as this provides a higher standard of security.

To ensure that the only people on the call are those who are authorised to be there, the works council should use a password or waiting room function to limit access. The waiting room function allows the administrator to manually grant each participant access to the virtual meeting room. The meeting should also be “closed” as soon as all participants have joined it. This prevents any persons who are not members of the works council from connecting to the call, even if they know the password. The works council should avoid sending of a dial-in link which includes the encrypted password, as it may be forwarded to unauthorised persons. A stricter standard applies to the use of such communications systems for the work of the works council than it does to general use within the company.

Moreover, the meeting may not be recorded, even if all members of the works council agree to the recording. This is specifically prohibited by s. 129 Works Constitution Act and is not modifiable by agreement, as this provision not only respects the privacy rights of the works council members but primarily ensures that the works council meetings are still held “behind closed doors”. After the meeting, any chat records must also be deleted from the conferencing system.

Tracking functions must also be disabled to prevent the unlawful monitoring of works council members during the meeting. Tracking the presence and activity status (active/ inactive/ absent) of a member of the works council or their alertness during a meeting are both considered monitoring. Alertness tracking shows the administrator whether the participant has the call window active and in the foreground on their screen during the meeting.

Finally, the usual technical and organisational measures for the use of software must be implemented in order to ensure the protection of personal data. For conferencing systems, this includes technical arrangements to prevent third parties from accessing the webcam, log-in data or even the system itself; the encryption of data (strong transport encryption as a minimum, but ideally end-to-end encryption); and the use of data-minimising default settings. To minimise the amount of data processed, the range of functions should be restricted to those necessary for communication. An example of an organisational measure is guidelines on the proper use of video and telephone conferencing systems, including on the permissible handling of data by members of the works council in line with data protection and works council legislation. These guidelines can even prohibit the private use of the company’s conferencing systems. In addition, members of the works council should be schooled in how to use such systems in compliance with data protection laws.