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Equipment provided to the works council

No entitlement to a separate telephone and internet connection (Higher Labour Court (LAG) Lower Saxony, court order of 2014-07-30 16 TaBV 92/13)

Pursuant to section 40 para. 2 of the Works Constitution Act (BetrVG), employers are obligated to make available, to the extent necessary, to the works council rooms, material resources, information and communications equipment, as well as office staff for the purpose of meetings, consultations and ongoing management procedures. It has become generally accepted that the works council is also entitled to a computer if one is required to perform the tasks of the works council. The courts also regularly regard internet access as necessary, as a generally used, comprehensive source of information.

The employer in the case decided by the LAG Lower Saxony installed a telephone system capable of being configured such that communications data can be saved, including the full dialled numbers, and can be evaluated so as to match up the numbers dialled with the individuals who made the calls. The individual telephones can be interconnected, as well as centrally configured and managed. The works council office was equipped with an extension connection. Internet access was provided via a proxy server, which allowed for access management and monitoring. It was possible to log users and at least, IP addresses as well as all URLs from the browser access sessions, and to match up this information with specific individuals. It was possible for administrators to read the email cache as well as deleted emails, as a result of backups. The works council requested that the employer provide a separate telephone and internet connection that was not mediated through the employer's proxy server.

The LAG Lower Saxony rejected this request made by the works council. Although the LAG Lower Saxony recognised that the works council had a basic entitlement to a telephone connection and internet access, the works council must weigh the employees' interest in proper discharge of the office of works council against the legitimate interests of the employer, including the latter's interest in limiting cost burden obligations. The type of telephone connection usually used in the company is generally sufficient for performing the tasks of the works council. The works council can request of the employer that its telephone connection remain unmonitored; for instance, monitoring of the communications data of the extension can be suppressed and the evaluation of such data can be prohibited. A separate connection is therefore not necessary to protect against the solely abstract risk of monitoring by the employer. The same applies to the internet access. Furthermore, this avoids the risk of an unnecessary security gap.

Recommendation for practice:
In practice, there is an observable trend toward works councils continuously making more wide-ranging demands of the employer with respect to equipment for the works council. Employers all too often accommodate such legally unjustifiable requests in order to avoid the risk of an obstructionist attitude in the works council, in relation to overtime, for example. At the same time, exaggerated requests should not be granted hastily. The next requests to be made will surely be even more wide-ranging.

Tobias Grambow
Author:
Tobias Grambow, lawyer
and specialist lawyer for
labour law
grambow@buse.de

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