The works council in labor law
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The works council
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The works council is the representation of interests elected by the workforce of a company. The applicable regulations for the works council are derived from the Works Constitution Act (BetrVG). The representatives and thus also the entire works council are elected for a term of office of four years. How many employees can be elected depends on the size of the company. A special feature of the works council members is their increased Protection against dismissal during the current term of office. Thus, a representative of the works council can only be dismissed for extraordinary cause. This results from the principle that the members elected by the workforce must specifically implement the interests of those in the company and stand up for them.
The protection against dismissal as such results from the § 103 BetrVG in connection with § 15 KSchG. If the employer does wish to give extraordinary notice of termination to the works council member, he must, as in the case of any other member of the works council, give notice of termination to the works council member. Cancellation also obtain the consent of the works council. Should the works council give its consent to the Cancellation refuse, the Cancellation nevertheless not impossible. The employer can then conduct consent substitution proceedings at the competent labor court. If this is available at some point, the notice of termination can be issued to the works council member. It is still possible to file an action for protection against dismissal against this termination with the labor court within three weeks.
The works council also has comprehensive participation rights within the company. It enjoys a right of participation (which, however, does not affect the final decision-making power of the employer) - within the framework of a right to be heard and a right to consultation. Likewise, the works council has the right to information (the employer must inform the works council of its own accord and thus without demand in a timely and comprehensive manner about all kinds of matters) and the right of co-determination. The latter is the right whereby the employer cannot implement its decisions without the consent of the works council.
Within the scope of this right, the works council has a right to refuse consent (with regard to individual personnel measures) and a right of objection (e.g. with regard to an ordinary termination within the prescribed period, if certain reasons exist against the Cancellation speak). All these rights restrict the employer in his pure freedom of decision and a restriction of the works council in its rights is not permissible. The following must also be taken into consideration § 102 BetrVGThe works council may exercise its right to withhold consent or its right of veto, but the employer may still issue a notice of termination after the expiry of a possible deadline. Cancellation can pronounce.
The works council shall meet at least once a month for a discussion or meeting. Within the meeting and its tasks, the works council must work together in a spirit of trust. The meeting itself is called and chaired by the chairman. There is no deadline for calling a works council meeting. Rather, attention must be paid to the circumstances of the individual case. There is also no requirement as to the form of the invitation. It is sufficient to invite a works council meeting if it is posted on the notice board. If the chairman of the works council is prevented from attending, his deputy shall chair the meeting. If the deputy is unable to do so, the chairmanship of the meeting can even be passed on by resolution to another works council member, who has nothing to do with the actual chairmanship or direct deputization.
However, the time until the meeting must be long enough for the works council member to have had the opportunity to participate and to give his employer or supervisor some opportunity to prepare. The works council must then prepare an agenda for the meeting. The meetings themselves are not public (this is mandatory in any case) and usually take place during working hours. The purpose of this is to keep outside influences away from the works council meeting.
In addition, this ensures that matters that have nothing to do with the company are not discussed. However, the non-public nature of the works council meeting can be extended to allow trade union representatives or representatives of the employers' association to attend the meeting. Even if the meeting is not public, recordings and loudspeaker systems are not directly excluded. Only the chair of the meeting, i.e. in most cases the head of the works council, must agree to this with his or her consent.
What is the purpose of a works council meeting?
The works council meeting?
At a works council meeting, resolutions are passed by a majority (not a tie) of those present. A works council is only quorate if at least half of the elected members are present. Minutes of the meeting shall be taken. During the activities as a member within the works council or also in the youth and training representation, the principle applies that they may not be disturbed, hindered or disadvantaged or favored because of the activity.
There is no so-called self-assembly right of the works council or its members. As a result, a meeting of employees not called by the works council is not a works meeting within the meaning of the law. In general, the member has a duty of confidentiality due to his special position in the company. Thus, even when leaving the works council, company secrets may not be discussed or otherwise disclosed. The tasks of the works council are described in more detail in § 80 I BetrVG.
The ability of a works council to act also includes a chair. This is elected from among the members and consists of the chairman himself and an elected deputy. They represent the resolutions passed by the entire works council. If there are nine or more members, the works council must form a works committee. This committee manages the regularly recurring business. If the company has a workforce of 200 employees or more, the members of the works council must be released from their normal duties in the statutory number. Then, when the term of office of four years is over, they would have to return to their old position.
However, it is important to note that other arrangements can be made in a collective agreement or other company agreements. More detailed regulations are contained in the § 38 BetrVG. It is also important that the leave of absence really applies to a works council task. These are, for example, works council meetings, meetings of the individual committees, works and department meetings, works inspections, meetings with trade unions and authorities, meetings with the employer or meetings of conciliation bodies.
Does the works council have any other duties?
What are the tasks of the works council?
Other common tasks of the works council include preparing and following up on meetings, discussions and events. The preparation of documents and reports, the holding of consultation hours of the works council for the other employees, going to a Lawyer for the preparation of labor court proceedings, support and supervision of individual employees within the scope of responsibility, individual discussions and consultations with employees, visits to external parts of the company and company sites, or the acquisition of knowledge necessary for the work as a works council member.
Special features of an employee in the works council
The work within the works council
The work within the works council is performed as an honorary office. This is described in § 37 I BetrVG; however, the works council members must be released for the activity. It may also be the case that the work for the works council is outside normal working hours. In this case, the employee is entitled to subsequent time off from work with continued payment of his or her salary. Likewise, works council members have the option of requesting additional time off from work. This may then be used for training or educational events. However, it is only important to note that these measures train the participant for the work of the works council.
Within this framework, each member is entitled to at least three weeks of this training time per term of office of the works council. If, at the works council member's own discretion, it was the case that he did not need time off for his task, he need not fear repayment of his salary. In this case, the employer must still pay the works council member his salary in full. Likewise, the employer may not give the works council member a warning for missing work. An incorrect assessment of the time off does not constitute a breach of duty on the part of the employee / works council member.
Unless works council members are permanently released from their normal duties, they do not have to ask the employer for permission each time they wish to perform a works council activity. Rather, in such cases, the works council member is automatically released from his or her activity if the completion of the task is directly required. Approval of the release is therefore not directly necessary. However, immediate removal from the workplace is not permitted. The employee or works council member must first sign off with his or her supervisor and also sign on again when he or she returns to the workplace. When signing off, the employee should provide an approximate indication of the duration and his place of work.
The purpose of this sign-off is to enable the employer to react to the works council member's absence at short notice. This gives the employer the opportunity to reallocate work or to deploy a substitute. The works council member is not obligated to provide further information to his supervisor. However, if the supervisor refuses to allow the works council member to take part in the activity because the actual work seems to be more important to him, the works council member has the opportunity to explain in brief the works council activity that is necessary at that moment. He does not have to explain himself fully and in detail. If it is possible to postpone the works council activity, this should also be done.
The works council member's deregistration and re-registration are his or her contractual obligations, which he or she must also comply with. If this is not the case, failure to sign off or report back may have consequences under labor law. It is also possible for the works council to set up office hours during working hours, which normal employees can use if they need to talk. When and to what extent these office hours take place must, however, be agreed with the employer. If an employee attends these consultation hours during his or her own working hours, he or she does not have to worry that the employer will cut off his or her pay for this time. This would not be permissible.
The works council members also have an equal claim to their normal remuneration. During the period of membership of the works council, the employer must therefore continue to pay the salary that the works council member would have earned in the course of his or her normal work. In addition to the normal salary, there is also an entitlement to other salary components that would have been received if the employee had worked normally. This includes, for example, overtime or night shift bonuses. Sunday and holiday bonuses or social allowances. There is also a further entitlement to vacation pay, Christmas bonuses, capital-forming benefits or profit-sharing or commissions if these have already been paid.
The general costs incurred by a works council shall be borne in full by the employer. Likewise, the employer has the duty to provide suitable measures for the work of the works council. For example, the employer must provide working space and resources. If there is no suitable room in the company (for example, for holding a meeting), a room can be rented outside the company. A meeting in the open air can only be considered under special circumstances and the appropriate time of year.
Normally, the employer is responsible for renting the room outside the company. The works council may not act independently here because of the costs borne by the employer. However, a deviating arrangement with the employer seems possible. However, the employer must also provide information and communication technology and office staff. The employer is also obliged to bear the costs of the works council election.
Consultation of the Works Council in the Event of Dismissal
Works council consultation in the event of termination
As already mentioned, the works council must be fully informed in the event of measures taken by the employer. This also applies in the case of dismissals by the employer. This principle applies to every Cancellation which the employer wishes to carry out. If it is the case that the employer omits the termination hearing or the works council hearing is faulty (not properly informed), it would become invalid in its entirety. For this reason, it is also the case that if the employee is dismissed in litigation, the complaint of proper consultation of the works council is a common first act.
This is advisable for the reason that negligence on the part of the employer during the hearing is not uncommon. The burden of proof for a proper hearing lies with the employer and not with the employee.
The reason for which the employee is to be terminated is not relevant. It is therefore irrelevant whether the termination is ordinary, extraordinary or even without notice. It is also irrelevant for the obligation to consult the works council that the employee to be dismissed has an increased Protection against dismissal is enjoying, i.e. is out of the probationary period or is still within the probationary period.
Within the hearing itself, the employer must explain the reasons for the intended termination. Therefore, the hearing sheet should contain the exact details of the nature, deadline, date and reasons for the Cancellation must be included. In order for the employer to fully comply with its duty to inform the works council, it must provide the works council with all reasons. If the employer omits reasons or even if they are incorrect, he is not fulfilling his obligation.
After the works council has received the employer's hearing sheet, it has the option of expressly agreeing to the termination, not making a statement, raising concerns about the Cancellation (which has no legal consequences) or to object to the termination. However, the latter is only possible if the employer has disregarded or not taken into account social aspects, such as social selection, when selecting the employee to be terminated.
Also, the objection is only possible if the employee can be transferred to another position within the company or if a new position is open due to training or further training opportunities. Likewise, an objection by the works council makes sense if the employee could remain employed under possibly changed contractual conditions and the employer also agrees to this.
The time limit for hearing the works council results from Sec. 102 II 1 BetrVG. According to this provision, the works council has one week to deal with the hearing and either express its concerns or consent. If it does not report back within this week, its silence is deemed to be an approval of the termination. In the case of extraordinary termination, the period is limited to three days.
If the works council objects to a termination by the employer and the dismissed employee has a Legal action against dismissal filed with the competent labor court, the employer shall reinstate the employee under unchanged conditions until the conclusion of the legal dispute. Only the court itself can release the employer from this obligation. However, this also only applies if the employee's action appears to be unsuccessful, continued employment would lead to an unreasonable burden or the works council's objection appears to be arbitrary and unfounded.
In general, the works council has the right to involve experts in the performance of its duties, subject to agreement with the employer. Experts themselves are persons who replace missing expertise or technical knowledge and help the works council to ensure the cooperation with the employer. They are also subject to a duty of confidentiality. However, this only applies if and to the extent that this is necessary for the proper performance of its activities. Likewise, the works council can claim against the employer that the latter provides it with knowledgeable informants. The employer must also bear the costs for the informant and an expert.
Principles for the election of the works council
Election of the works council
As is known, the term of office of the works council is four years and begins with the announcement of the election results. The general eligibility to vote for the works council election is the completion of the 18th year of age. In the context of employee leasing by an external company for temporary personnel, the right to participate in the election only exists if one has worked in the company for at least three months at the time of this.
The size of the works council is determined by the size of the company and is therefore based on the number of employees. If the workforce is between 5 and 20 persons, the works council consists of one person. If the workforce is between 21 and 50, the works council consists of 3 members, and if the workforce is between 51 and 100, the works council must have at least 5 members. If there are more, the size of the works council is determined by § 9 BetrVG.
The election of the works council logically also includes other principles. The works council is elected in a secret and direct election. The election itself is initiated and also carried out by an election committee. The election committee also determines the result of the works council election. It is possible to challenge the election at the competent labor court if the election has violated the above principles and a correction has not taken place. Even if a business ceases to exist due to, for example, closure or other reasons, the works council still remains in existence.
Membership of the works council therefore only expires if the term of office expires, the person resigns from office within the works council, terminates the employment relationship or loses his or her own eligibility. It should be noted that in the event of resignation from the works council, a substitute member takes over. If a member is prevented from attending for a certain period of time, he is also replaced by a substitute member.