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Federal Cabinet: Works Councils Modernisation Act is agreed
On 31 March 2021, the Federal Cabinet adopted the draft bill for the Act on the Modernisation of Works Councils, which aims to facilitate the establishment and election of works councils, to improve protection against unfair dismissal for those who initiate an audit of the works council and to drive the digitalization of works councils. Specifically, the bill provides the following:
It extends the scope of application of the simplified election procedures and reduces the number of supporting signatures necessary for nominations. This rule facilitates the establishment of works councils, particularly in small operations.
- In the future, the status of the apprentice will be decisive for the rights of apprentices to vote for and be elected to youth and apprentice representative positions. The age limit of 25 is deleted for apprentices. This takes account of reality. The average age of apprentices is higher, and their particular operational interests are not dependent on their age but make them good youth and apprentice representatives.
- Challenges to the works council elections due to errors in the register of voters are restricted in certain circumstances. This avoids disingenuous challenges and increases the legal certainty of works council elections.
- The number of employees, who have particular protection against ordinary dismissal when calling election meetings is increased from three to six. Special protection against ordinary dismissal or termination for conduct or personal grounds is also introduced for employees who document their intent to establish a works council in a notarised statement and undertake appropriate preparations. This facilitates the establishment of a works council and better protects the activities of the employees involved during this sensitive phase.
- The draft bill reacts to the increasing use of artificial intelligence in the working world: it clarifies that the rights of works councils with respect to the organisation of the working environment and processes continue to apply even if artificial intelligence (AI) is used within the work. It also ensures that the rights of works councils concerning personnel selection guidelines continue to apply, even when they were produced by or with the help of AI. If the works council has to assess the introduction or use of AI in order to fulfil its duties under the Works Constitution Act, it will be necessary to involve an expert.
- Works councils will have a co-decision right for the structuring of mobile working and can campaign for a binding, uniform framework for remote working.
- In the future, employees and the works council will be able to call on the conciliation committee for mediation in vocational training matters when the parties are not able to agree on specific measures. The conciliation committee shall attempt to facilitate an agreement between the parties without the need to force an agreement.
- In the future, works councils should be able to perform their work with legal certainty when using modern means of communication, even after the COVID-19 pandemic has passed. Works councils should therefore be able to decide forthemselves whether to use video or telephone conferencing for meetings, with due regard to the preference for in-person meetings. When a quarter of the members of the works council object, the meeting must be held in person.
- A secure electronic signature can be used to sign works agreements, agreements on the reconciliation of interests and social plans. This is also clarified for awards of conciliation committees. This facilitates the digitalisation of the work of the works council.
- The draft bill clarifies that the employer is the controller for the purposes of processing personal data within the meaning of the GDPR. The works council and the employer have a duty to support each other in the fulfilment of data protection law requirements. This rule recognises that, on the one hand, the works council has access to personal information when performing its duties while, on the other hand, outwardly, the works council is not legally an entity unto itself.