Federal Government intends to make digital works council work possible
Calls for opening the Works Constitution Act (Betriebsverfassungsgesetz - BetrVG) towards digitalisation existed long before the outbreak of the Corona pandemic. Numerous voices so far declared themselves in favour of admitting the passing of decisions via video conference. However, the legislator did not listen to these calls hitherto. Due to the massive restrictions after the outbreak of the Corona virus the capacity for action and decision-making of works councils is facing problems and induce politicians to change their minds.
According to the intention of the governing parties the passing of decisions digitally should be possible, at least, for a limited period of time. This follows from a communciation of the Federal Government of 9 April 2020 (Link). Not only works council members but also employers would profit from this facilitation, since the risk of an ineffective works council decision has far-reaching consequences. Just think that a company agreement concerning the introduction of short-time work would be ineffective for formal reasons, since the decision has not been passed properly. Short-time work had not been introducted effectively; and numerous problems and risks woud arise in the case of the reversal of the measures.
With the new rules in the BetrVG the works council members are given the opportunity to pass decisions also via video and telephone conference. Face-to-face meetings should be avoided without reducing the body's capacity to act. Corresponding regulations are designed for spokesmen committees, staff councils and similar co-determination bodies. According to the governing parties, the changes should be adopted already in April and come into force retroactively as of 1 March 2020, and, in so doing, also decisions already passed should be remedied.
This political development is to be welcomed and would provide the business partners with the legal certainty required in times of the corona pandemic.. At present, numerous employers are finally requested by their works councils to make declarations in which the employer ensures that he will not contest or dispute under employment law any works council decisions taken in times of the corona pandemic. In part, websites of works council even contain templates in this respect. In so doing, it is, however, ignored that the risk of the invalidity of a works council decision - notwithstanding of such a declaration given by the employer - could be determined by court and would be completely at the expense of the company. The declaration of the employer vis-à-vis the works council does not bind the labour court nor any employee affected who claims before the court that the hearing before the works council concerning his dismissal pursuant to Section 102 BetrVG had been ineffective or that the company agreement concerning the introduction of short-time work is not based on an effective decision of the works council. This risk could be reduced effectively by the planned regulation. All parties involved would then have a legally certain working basis.
Note: The article is published in similar form on beck-online.