Adoption of resolutions by the works council after a change of the agenda
A defect of summons does not necessarily result in invalidity of the works council resolutions (Federal Labour Court (BAG) decision of 22/01/2014 – 7 AS 6/13)
The works council and employer were in dispute as to the validity of a works agreement (WA) regarding searches of employees' persons. The (predecessor) works council consisting of 19 members had resolved to approve the WA in a meeting of the works council held in December 2009. Only 16 members took part in the vote. The works council issued the summons to the meeting without specifying the agenda. The works council regards the WA as invalid because to the procedural defect, since the defect of summons affecting the meeting of the works council could not be cured despite unanimous adoption of the resolution, because the works council had not been complete.
The Higher Labour Court (LAG) of Hessen found in favour of the works council. As a result of an appeal the case came before the first Senate of the Federal Labour Court (BAG). It is that court's view that a summons to a meeting of the works council in which the agenda is not specified does not result in invalidity of a resolution adopted during that meeting if all members of the works council were summoned in time, the works council has a quorum within the meaning of section 33(2) of the Works Constitution Act (BetrVG) and the members present have voted unanimously to discuss and vote on the subject of the subsequently adopted resolution. For this purpose it is not necessary that all members of the works council are present at the meeting. Because this would represent a departure from the case law of the seventh Senate of the BAG, the first Senate asked the seventh Senate if it would maintain its initial opinion. Previously it has been the case that a works council resolution is invalid for formal reasons alone if the invitation to the works council meeting did not contain a corresponding agenda and not all members of the works council were present at the meeting. A subsequent amendment or supplementation of the agenda has required that the complete constituted works council unanimously agree to include the discussion item in the agenda and to vote on its adoption (Federal Labour Court (BAG), decision of 24/05/2006 – 7 AZR 201/05, with additional references).
The seventh Senate agreed with the view of the first Senate and abandoned its previous case law. According to the court, although observance of section 29(2) sentence 3 of the Works Constitution Act (BetrVG), which provides regarding the delivery of the summons, is essential to the validity of a resolution adopted during a works council meeting, this procedural defect can be cured if all works council members were summoned to the meeting in time and those present constituting a quorum within the meaning of section 33(2) BetrVG unanimously resolve in favour of supplementing or creating the agenda. The presence of all works council members is therefore no longer required.
Recommendation for practice:This change in case law should be welcomed by employers and works councils for practical reasons and in the interests of legal certainty. It facilitates the work of the works council by opening the agenda for additional, last-minute items. Although in the future employers will find it more difficult to cast doubt on works council resolutions, they gain certainty with regard to the validity of such resolutions. This is illustrated by the original case (BAG) decision of 22/01/2014 – 7 AS 6/13) in which the (successor) works council responsible for the summons, agenda and its amendment itself appealed to the invalidity of the resolution.