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Co-determination of the works council

Events solely for information purposes are not subject to co-determination
(Federal Labour Court (BAG), Court Order of 2014-04-15 1 ABR 85/12)

Events that concern economic relationships, company strategy, the economic environment and payment structure are not subject to co-determination. The employer held such an information event. Topics included the competitive position of the employer, its foreign strategy, contents of the relevant collective wage agreements, the overall company strategy as well as the payment structure. The participants were able to freely choose the topics and were not obligated to have meetings with the managers presenting the event. Only participation in the event itself was mandatory. A conciliation board established by a court declared itself to be obviously not competent to regulate the holding of an information event in accordance with section 98 para. 1 sentence 2 of the Labour Court Act (ArbGG). The works council appealed this ruling in accordance with section 98 para. 2 sentence 1 ArbGG. The court of final instance, the BAG, then had to consider whether the works council had any co-determination rights in this regard.

The BAG rejected co-determination rights of the works council deriving from section 87 para. 1 no. 1 and section 98 Works Constitution Act (BetrVG). The Court's reasoning was that the event did not concern any questions relating to the organisation of the company and moreover, was not a training measure.

The Court found that contrary to the arguments of the employer, the event did not address the primary performance obligations which are not subject to co-determination of the employee (known as 'work conduct (Arbeitsverhalten) not subject to co-determination'). This is because, according to the BAG, knowledge of general company relationships is not a component of work obligations. Work conduct is to be understood purely in relation to assigned tasks. The general interest in the company expected of employees, within the scope of their employment, and knowledge of subjects related to the company, company processes and management strategies, lacks this specific relation to assigned tasks. According to the BAG, the organisational conduct (Ordnungsverhalten) of employees is therefore also not affected: in order for this to be the case, the event would have had to convey instructions that coordinate the other conduct of employees in the company (not their work conduct). This was not the case.

A co-determination right of the works council did not apply pursuant to section 98 BetrVG, either. The event was not a training measure as it did not encompass any systematic knowledge transfer in the form of a lesson plan.

Recommendation for practice:
Information events regarding general topics such as company structure, contents of collective wage agreements, company orientation, etc. are not subject to co-determination. Employers are also permitted to obligate employees to attend. The judgement of the BAG, however, concerned an event that did not include a single topic subject to co-determination. Employers must always check carefully before holding such events to ensure that none of the topics being addressed relates to topics subject to co-determination. Even if only relatively few topics subject to co-determination are being discussed, a conciliation board must be convened to deal with at least these topics, and potentially, the event as a whole.

Bianca Brier
Author:
Bianca Brier,
lawyer
brier@buse.de

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