The co-determination of the works
council
Principle:
Trustful cooperation
Monthly conferences
Facts about the works council
 Legal basis: Works Council Constitution Act
(Betriebsverfassungsgesetz-BetrVG 1972)
 Formation: in companies with at least 5 employees
 Term of office: 4 years
 Size: depends on the number of employees
 Performance of tasks: in particular by employees
released from duties (DOR: 3)
 Area of responsibiltity: co-determination in
operating matters
The different types of co-determination
Right of consulation, information and notification
Example: installation and re-organising of workplaces, changing
of operational prodecure, human resources planning
Right to be heard
Example: dismissal of an employee
Right of approval and right to refuse consent
Example: new employment or in case of transfer of employees
Right of initiative
Example: operating agreements IT area
Rights of participation
Example: § 87 BetrVG – further information see later
Main rights of co-determination of
Deutsche Oper am Rhein
(1) True rights of co-determination, § 87 BetrVG
(2) Individual personnel measures, § 99 BetrVG
(3) Termination of employment relationships, §
102 BetrVG
However: Tendenzbetrieb § 118 BetrVG (No codetermination in artistic areas)
(1) True co-determination
Method: previous agreement to employer´s
intended measure; the employer has to involve the
works council on its own initiative; the works council
has a partial right of initative
Basis: catalogue of § 87 I BetrVG, provided there is
not a statutory or collective rule and the measure
shall apply on a collective basis
Examples from the catalogue, § 87 I BetrVG
 Questions concerning the organisation of the company and
the behaviour of the employee
 Starting and ending of the daily working time as well as breaks
and the allocation of working time in respect of individual
days of the week
 temporary shortening or lengthening of working time
 Introduction and application of technical equipment which
are intended to observe the employee‘s behaviour and
efficiency
 Form and administration of social services whose sphere of
influence is limited to the company or enterprise
Legal consequences of missing agreement
Arbitration committee (Einigungsstelle):
The arbitration committee is an in-house arbitration
board. It meets, negotiates and decides whenever
the work council and the employer cannot find any
agreement
It is a complexe and an expensive procedure
Legal consequences of missing
cooperation
The work council has the right to demand the
deletion of the unconstitutional measure and may
claim for omission in future
Co-determination regarding to individual
personnel measures § 99 BetrVG
Types of personnel measures:
 hiring
 transfer
 payment
Type of co-determination regarding to
individual personnel measures
information, consent and refusal to consent
1. Employer´s obligation to inform
 prior notice of the personnel measure
 Presentation of the application documents
Type of co-determination regarding to
individual personnel measures
2. Consent of the works council
The employer has to obtain approval for the
measure
3. Right to refuse the consent
Requirements:
Compliance of one of the 6 facts of § 99 II BetrVG
 Example: right to refuse the consent if a vacancy notice
wasn´t published in the company according to § 93
BetrVG (number 5)
Observance of a space of time of one week,
stating reasons for the refusal in written form; §
99 III BetrVG, otherwise: fiction of consent
(Zustimmungsfiktion)
Legal consequences in case of the
refusal to consent to individual
personnel measures
Employer is not allowed to carry out the
measure
Exception: in case of urgency (§ 100 BetrVG): preliminary
execution is possible
Consent of the work council can be replaced
by labour court
co-determination regarding to termination
Types of participation: the right to be informed,
to be heard, to comment and to object
The right to be informed
The employer is obligated to inform the
workcouncil about the intended termination
and has to provide reasons for it
The right to demand a hearing
The employer must consult the work council
before giving notice of termination
Legal consequences for missing consultation:
The termination is invalid
The right to comment
The work council can
 give its consent to the termination
 keep silent (consequence: fiction of consent
(Zustimmungsfiktion) in a week´s time)
 object to determination (§ 102 III BetrVG)
Legal consequences in case of objection
At first continuance of the employment under
the following requirements
 the employee demands at labour court the
declaration the work relationship has not
been risovled by termination