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You’re not getting in here! Or perhaps you will? Co-decision rights of works councils for access concepts
Judgment of the Landesarbeitsgericht of Cologne of 22 January 2021 in Case 9 TaBV 58/20
The works council will have co-decision rights even in the case of urgent matters to fight the pandemic.
The facts of the case
At the start of this year, the Regional Labour Court (Landesarbeitsgericht) in Cologne had to deal with the issue of the scope of the works council’s co-decision rights when the employer, in this case a hospital, introduced an access concept for all external parties, in particular those visiting patients. The concept detailed the documentation required for third parties to access and visit the clinic grounds. The hospital did not involve the works council in the decision-making process. The works council refused to accept this and applied for the appointment of a conciliation committee to safeguard their co-determination rights.
The judgement
The works council was successful in its claim. At both instances, the Courts recognised a co-decision right under § 87 (1) No. 7 of the Works Constitution Act (Betriebsverfassungsgesetz) (concerning health protection) and a conciliation committee was established. The co-decision rights of the works council pertain to measures adopted by the employer to protect against damage to health to the extent that the measures implement or further substantiate statutory or regulatory framework legislation. In the Courts’ view at both instances, § 5 (1) of the Corona Protection Regulation (Coronaschutzverordnung) of NRW, for example, constitutes such a framework regulation aimed at protecting the health of employees. Accordingly, a hospital must take the necessary measures to prevent the introduction of the Coronavirus. Visitors were only allowed where they complied with the access concept adopted by the hospital, which implements the recommendations of the Robert-Koch-Institut. In the view of the Courts, as the employer has some playing room when implementing these recommenda-tions (such as about visiting times and distancing rules) it must therefore involve the works council.
Consequences for practice
This judgment shows that when statutory or regulatory provisions provide some freedom in how to they are to be implemented, the works council must always be involved. The particularly urgent nature of measures to prevent the spread of the Corona pandemic does not change this. In line with the legal assessment and the clear case law, the right of the employer to unilaterally determine matters remains an absolute exception. Only in real emergencies will the employer have a unilateral power to act. A real emergency can only be assumed when – objectively – action must be taken immediately because the plant and/or the employees would otherwise be harmed. In addition, it must not be possible to reach the works council, or the works council must not be able to duly adopt a resolution approving the measures or arbitrarily refuses to grant its approval without any objective reasons. These are recognisably high hurdles. Even then, the works council must be able to exercise their co-decision rights as soon as possible.
Our tip
Some employers might feel restricted, but the decisions were expected. Effectively fighting the pandemic within the company in conformity with co-decision rights therefore requires
- a review of the official regulations and stipulations to determine whether there is any playing room at all,
- involving the works council in good time whenever a need to act is identified,
- possibly establishing a taskforce of the employer and the works council, that can be contacted quickly and can act, and
- establishing a conflict resolution mechanism (keyword: permanent conciliation committee), to quickly resolve a dispute with the help of this external third party.