1. Works council election
According to Section 19 Para. 1 BetrVG, a works council election can be contested if essential provisions regarding the right to vote, eligibility or the election procedure have been violated and no correction has been made, unless the violation could not have changed or influenced the election result.
By resolution of October 13, 2004 (- 7 ABR 5/04 -) the Seventh Senate decided that Section 2 Para. 5 electoral regulations in the version dated December 11, 2001 (WO) are an essential regulation on the electoral procedure in the sense of of § 19 para. 1 BetrVG is. According to this regulation, the electoral board should ensure that foreign employees who do not speak German are appropriately informed about the election process, the preparation of voter and nomination lists, the election process and voting before the works council election is initiated. The classification as an essential regulation on the electoral process does not conflict with its design as a target regulation. The regulation ensures the exercise of active and passive voting rights and serves the operational integration of foreign employees. In this respect, it aims at the realization of the elementary democratic principle
the equality of choice. The Seventh Senate further decided that when assessing the question of whether the foreign employees employed in the company speak German in the sense of from § 2 para. 5 WHERE powerful, what matters is whether their knowledge of German is sufficient to be able to understand the content of electoral regulations and an election notice.
By resolution of March 16, 2005 (- 7 ABR 40/04 -) the Seventh Senate decided that the regulations in Section 15 Para. 2 BetrVG and Section 15 Para. 5 No. 2 Sentence 1 WHERE
on the gender quota in works council elections are constitutional. According to § 15 para. 2 BetrVG, the gender that is in the minority in the workforce must be represented in the works council at least in proportion to its numerical ratio if it consists of at least three members. This regulation applies in the successor companies of Deutsche Post with the proviso that the civil servants generally form their own group when elected to the works council and that the gender in the minority within the respective group is represented on the works council at least in proportion to their numerical ratio in the group must. If there is not the required number of members of the same gender in the minority among the maximum number included on the suggestion lists, in accordance with Section 15 Para. 5 No. 1 WO instead of the one on the suggestion list with the
lowest maximum number of persons who do not belong to the minority gender, the person of the minority gender named after them in the same list of proposals who is not taken into account and who is not taken into account. If this list of suggestions does not contain any person of the gender in the minority, this works council seat will be used in accordance with Section 15 Paragraph. 5 No. 2 Sentence 1 WO on the proposal list with the following maximum number, which has not yet been taken into account, and with members of the same gender in the minority. These regulations do not result in a disproportionate interference with the provisions of Article 3 para. 1 GG following principle of equal voting rights. They can lead to an interference with both active and passive voting rights because the votes may not have the same success value and an applicant of the gender in the minority may be given priority over an applicant of the gender in the majority with a higher number of votes must be conceded.
However, this interference with equal voting rights is prohibited by the equal rights requirement of Article 3 Paragraph. 2 GG justified. This requirement entitles the legislature to compensate for the actual disadvantages that typically affect women through favorable regulations. § 15 Abs. 2 BetrVG and Section 15 Para. 5 No. 2 Sentence 1 WO serve to actually enforce equality between women and men in view of the fact that women are generally underrepresented in the works council. The regulations violate the provisions of Art. 9 Para. 3 GG did not guarantee freedom of association. It is true that in Section 15 Para. 5 No. 2 Sentence 1 WHERE ordered so-called list jumps affect the competitive chances of those unions in the works council elections whose nomination lists do not contain a sufficient number of candidates of the gender in the minority. However, this restriction on freedom of association is necessary to enforce the minimum quota for the gender in the minority through the equal rights requirement of Article 3 Paragraph. 2 GG justified. The regulations do not violate the Council’s Equal Treatment Directive 76/207/EEC of February 9, 1976 because, according to Art. 2 Para. 4 does not conflict with measures to promote equal opportunities for men and women.
With a resolution of October 13, 2004 (- 7 ABR 6/04 -), the Seventh Senate decided that an employer cannot successfully challenge the works council election that was held because the electoral board allowed 283 ABM employees to take part in the election and in the investigation the number of works council members to be elected was taken into account. Only employees of the company have the right to vote for the works council. The size of the works council to be elected depends on the number of employees entitled to vote. Employees in a job creation measure are employees in the sense of: of Section 5 Para. 1 BetrVG and therefore entitled to vote for the election of the works council in accordance with Section 7 Sentence 1 BetrVG. You have an employment relationship with the employer and are integrated into its company organization. They must therefore also be taken into account in the workforce size that determines the number of works council members in accordance with Section 9 BetrVG. The employees in job creation measures are integrated into the employer’s company because they are deployed there to carry out work within the framework of the projects taken over by their employer. You are employed within the scope of this work-related purpose. This does not contradict the fact that the purpose of their activity is also professional stabilization or qualification in order to improve the prospects of integration (§ 260 para. 1 No. 2 SGB III in the
version valid until December 31, 2003).
Continuing its previous jurisprudence, the Seventh Senate decided in its resolution of November 10, 2004 (- 7 ABR 12/04 -) that a terminated employee according to Section 8 Para. 1 BetrVG remains eligible for election to a works council if it has filed an action for protection against dismissal in accordance with Section 4 of the KSchG and this has not been legally dismissed before the election is held. It is true that employees who have been properly terminated and are not continued to be employed after the notice period has expired are not entitled to vote in the works council election in accordance with Section 7 Sentence 1 of the BetrVG because they are not actually integrated into the employer’s operational organization. However, the distinction between eligibility and the right to vote for employees who have been terminated and those who are no longer employed follows from the different protective purposes of the standards on active and passive voting rights. At the time of the election, it must be clear whether the employee is allowed to vote or not in accordance with Section 7 BetrVG. Eligibility, on the other hand, can remain in limbo. It takes into account the uncertainty about the outcome of the dismissal protection proceedings by preventing the works council member from exercising his or her office until the proceedings have been legally concluded. In this case, the substitute member resigns in accordance with Section 25 Para. 1 Sentence 2 BetrVG temporarily into office. It also prevents the employer from influencing the composition of the works council by terminating unwelcome candidates.
With a resolution of April 20, 2005 (- 7 ABR 20/04 -), the Seventh Senate decided on the question of active and passive voting rights according to Sections 7 and 8 BetrVG that employees in accordance with Section 14 Para. 1 AÜG remains assigned to the contract employer’s business under works constitution law if a company belonging to the group concludes employment contracts in its own name in order to transfer its employees to other group companies in Germany and abroad to perform work without any intention of making a profit. This also applies to a group-affiliated personnel management company whose sole task is to transfer its employees to other group-affiliated companies. Like the exception regulation in Section 1 Para. 3 No. 2 AÜG shows, the AÜG is applicable to the hiring-out of employees that is purely intra-group and not just temporary. A direct application of Section 14 Para. 1 AÜG is excluded because the temporary employment was not carried out on a commercial basis. The corresponding application of Section 14 Para. 1 AÜG is necessary because of the comparability of interests with the permitted commercial hiring-out of employees. In the case it decided, the Seventh Senate considered commerciality within the meaning of from § 1 para. 1 AÜG denied due to no intention to make a profit. The payment of a levy of five per cent. H. the gross remuneration of each hired employee by the hirer does not constitute the contractual employer’s intention to make a profit if this only covers his costs.}
2. Blocking effect of a collective agreement according to Section 77 Para. 3 Sentence 1 BetrVG, wages and other working conditions that are or are usually regulated by a collective agreement cannot be the subject of a works agreement. According to sentence 2 of the regulation, this only applies expressly. With its resolution of March 22, 2005 (- 1 ABR 64/03 -) the First Senate confirmed that the blocking effect of a collective agreement according to Section 77 Para. 3 Sentence 1 BetrVG neither depends on the employer being bound by a collective agreement nor on the fact that the collective agreement is still valid when the works agreement is concluded. It is sufficient that the regulation of the matter in question in the form of a collective agreement is common practice in the relevant industry. The blocking effect of a collective agreement rule according to Section 77 Para. 3 Sentence 1 BetrVG extends as far as the scope of the collective agreement. It covers both companies and businesses that are bound by collective agreements as well as those that are
the collective agreement would apply if the employer was a member of the collective bargaining association. Company collective agreements are therefore unable to have a blocking effect on company agreements in the operations of other companies. In further development of these principles, the First Senate has decided that a collective agreement that determines its scope in relation to membership can be understood as extending to potential members of the collective bargaining association.
This can result in a blocking effect that extends beyond the operations of the actual member companies. In terms of collective bargaining law, it is harmless that the collective bargaining parties do not determine the technical and operational scope of a collective agreement based on an abstractly described economic sector. There are no legal concerns that prevent the scope of application from being determined based on potential membership in the employers’ association. In any case, this applies under the condition that the statutes of the employers’ association do not provide for the possibility of joining for every employer without any prerequisites, but rather link this to certain criteria through which the circle of potential members is limited in a similar way to the requirement of industry affiliation. Whether the scope of a membership-related collective agreement extends to potential members must be determined through interpretation. The Senate approved this for the collective agreements of the TÜV collective agreement. This leads to the blocking effect of Section 77 paragraph. 3 Sentence 1 BetrVG for employers potentially bound by collective agreements, i.e. for companies that meet the requirement for membership in the TÜV collective agreement. The Senate further confirmed that the blocking effect of Section 77 Para. 3 Sentence 1 BetrVG only applies in the operations of an employer who is not bound by a collective agreement to the extent that the subject of the regulation in question does not comply with the mandatory co-determination of the works council in accordance with Section 87 Paragraph. 1 BetrVG is subject to. The fact that part of the regulation of a works agreement is subject to co-determination does not mean that the blocking effect of a collective agreement is also lifted for the part that is not subject to co-determination.
3. Co-determination and participation of the works council
a) Co-determination in social matters
Unless there are compensation regulations in a collective agreement, the employer must grant the employee an appropriate number of paid days off or an appropriate supplement to the gross wages to which he or she is entitled for the hours worked during the night (Section 6 (5) ArbZG). This provision generally leaves the structure of the compensation owed by the employer for night work to the collective bargaining parties. With a resolution of April 26, 2005 (- 1 ABR 1/04 -), the First Senate decided that the collective agreement must represent compensation for the burdens associated with night work in order to suspend the statutory claim to compensation. This follows from the literal meaning of the term “compensation regulation” and corresponds to the meaning and purpose of Section 6 Paragraph, which serves to protect health. 5 ArbZG. The collective agreement can be regulated not only expressly, but also tacitly. A regulation that – like Section 4 No. 2.1 of the collective agreement for the branded catering sector:
West Germany of July 7, 2000 (MTV) – merely stipulates that a night work supplement is not to be paid, does not constitute a compensation regulation in the sense of from § 6 para. 5 ArbZG but. In such a case, the amount in accordance with Section 6 Para. 5 ArbZG gives the employer the opportunity to choose the alternative of compensatory time off. When structuring the owed compensatory time off, the works council has the right to do so in accordance with Section 87 Para. 1 No. 2 and No. 7 BetrVG. The employer can do this according to Section 87 Para. 1 Entry half sentence BetrVG, without co-determination, decide how many paid days off in accordance with Section 6 Paragraph. 5 ArbZG should be claimed. Determining the appropriate amount of compensation is not a matter of company regulations, but rather a legal question. However, the right of co-determination extends to a regulation according to which a claim to compensatory time off is converted into a claim to remuneration if it is not possible to grant compensatory time off within a certain period of time for operational reasons. § 4 No. 2.1 MTV does not exclude such a regulation by the operating parties if the “pay supplement” is not an original night work supplement, but a surrogate for the initially created entitlement to compensatory time off.
b) Co-determination in personnel matters
In its resolution of January 25, 2005 (- 1 ABR 61/03 -), the First Senate dealt with the co-determination of the works council when taking on temporary workers. According to Section 99 BetrVG, the taking on of a temporary employee is subject to co-determination by the works council (Section 14 Paragraph 3 Sentence 1 AÜG). The Senate has confirmed that the subject of the dispute is a consent replacement procedure in accordance with Section 99 Para. 4 BetrVG when hiring, the question is whether the intended personnel measure is permissible now and in the future. It must be answered in accordance with the legal situation applicable at the time of the (appeal) court decision. After the abolition of the maximum time limit for permissible temporary employment in Section 3 Para. 1 No. 6 AÜG aF, the intended permanent takeover of a temporary worker no longer constitutes a violation of the law, which the works council is subject to in accordance with Section 99 Para. 2 No. 1 BetrVG entitled to refuse consent. A violation of the equality requirement from Section 9 No. 2, Section 3 Para. 1 No. 3 AÜG nF is also not a violation of the law in the sense of, at least in the case of non-commercial temporary employment. of § 99 para. 2 No. 1 BetrVG, which prevents the temporary worker from being taken on. The works council can consent to a recruitment in accordance with. § 99 Abs. 2 No. 1 BetrVG only refuse if this itself violates a law that prohibits the employment as such. It is not enough that individual contractual conditions are illegal. Accordingly, a violation of the equal opportunity requirement does not prevent the temporary worker from being taken on as such. The non-commercial hiring out of employees does not require any government permission and cannot be prohibited if the equality requirement is violated. The regulations in Section 10 Para. 4, § 13 AÜG new version makes it clear that the intended protection of employees should take place through individual legal means. The Senate has further decided that the temporary employment of the borrower’s permanent employees is generally not subject to Section 99 Para. 2 No. 3 BetrVG.
With its resolution of January 25, 2005 (- 1 ABR 59/03 -), the First Senate decided, in agreement with the Federal Administrative Court, that a not insignificant expansion in terms of both duration and scope of the volume of regular working hours owed under the employment contract by employees who are already employed a new setting in accordance with Section 99 Para. 1 sentence 1 BetrVG represents. This does not follow directly from the wording of the regulation. However, it does not contradict the literal meaning of the term “attitude”, because the “attitude” in the sense of Integration into the company is also determined by the length of time the integration takes place. An employee is no longer integrated into the company in the same way as before if he is present for 40 hours a week instead of the previous ten hours a week. Thereafter, the increase in the previous working hours is no longer covered by the works council’s consent – granted or replaced – to the initial employment of the employee. The meaning and purpose of the right of co-determination according to Section 99 BetrVG requires that the not insignificant increase in previous working hours be viewed as a new position. The works council’s right of co-determination when hiring applies in particular to the interests of employees who are already employed. These are affected if the scope of the previously agreed regular working hours of a part-time employee is not to be increased insignificantly. No adjustment is a temporary or minor increase in working hours. The minimum duration of the increase in working hours required for employment is based on Section 95 Para. 3 BetrVG a period of more than one month. In any case, the required minimum scope is reached when either the employer has advertised the position filled by the extension of working hours or the works council has requested the advertisement in accordance with Section 93 BetrVG. The Senate further decided that the reduction in working hours is not a discontinuation. In the literal sense alone, a discontinuation does not require complete reintegration, but at least an increase in integration into the system. According to the established case law of the First Senate, the expiration of the one-week period of § 99 para. 3 BetrVG requires the works council to be fully informed in accordance with Section 99 Para. 1 sentence 1 BetrVG presupposes. If the one-week deadline is not set in motion, the works council may not approve an individual personnel measure in the sense of: this regulation cannot be replaced by the courts. If the employer gains information from job interviews about the personality of job applicants that is relevant to his selection decision, he must, according to a resolution of the First Senate of June 28, 2005 (- 1 ABR 26/04 -), inform the works council about the content that is important for his decision to teach these conversations. The obligation to provide information according to Section 99 Para. 1 Sentence 1 BetrVG serves to provide the works council with the information it needs to exercise its right to comment in accordance with Section 99 Paragraph. 2 BetrVG to be able to exercise it properly. Regardless of whether a private employer documents the results of the interviews in writing or fails to do so, he must inform the works council about the content of these interviews that is relevant to him. He must provide the works council with knowledge of the circumstances that are to be decisive for the intended selection. Only then can they comment on it and make suggestions if necessary. This applies to an even greater extent if the employer has committed itself to giving special consideration to women with equal skills and suitability in a women’s advancement plan, and decides in favor of a male applicant based on an interview despite having the same qualifications. This applies to an even greater extent if the employer has committed itself to giving special consideration to women with equal skills and suitability in a women’s advancement plan, and decides in favor of a male applicant based on an interview despite having the same qualifications. In such a case, the employer cannot simply assume that he has provided the works council with complete information about the applicants’ identities, even without informing them about the content of the interviews. If, after receiving the request for consent, the works council fails to point out in a timely manner that the information was incomplete and to request the employer to supplement the information about the applicant’s identity, the one-week deadline in Section 99 Para. 3 BetrVG was therefore not put into effect.
Case law confirms that social plan benefits may not be made dependent on the waiver of filing an action for protection against dismissal This follows from the works constitution principle of equal treatment in Section 75 Paragraph. 1 sentence 1 BetrVG. Nothing has changed in this regard as a result of Section 1a KSchG. The severance payment provided for therein has a different function than a social plan benefit. The social plan, which provides for severance payments for job losses, is based on the effectiveness of the dismissals. On the other hand, an individual severance payment – including one according to Section 1a KSchG – is regularly agreed with regard to the employer’s risk that the termination could prove to be ineffective in a dismissal protection process. Even if social plan benefits may not be made dependent on the employee’s waiver of filing a dismissal protection action, the operating parties are not prevented from providing benefits in addition to a social plan in a voluntary company agreement in the event that the company changes its operations in the employer’s interest in immediate planning security Employees do not have the opportunity to file a claim for protection against dismissal
makes use of. The fundamental authority of the operating parties to make such a regulation follows from Section 88 BetrVG. It does not violate the works constitution principle of equal treatment in Section 75 Paragraph. 1 sentence 1 BetrVG, nor does it violate the prohibition of disciplinary measures in Section 612 a BGB. However, a voluntary company agreement that promises benefits in the event that a dismissal protection claim is not filed may not, however, circumvent the ban on making social plan severance payments dependent on a corresponding waiver. Whether there is circumvention depends on the circumstances of the individual case. This can occur in particular if the social plan does not provide for adequate mitigation of the economic disadvantages.
resulting costs. With its resolution of August 17, 2005 (- 7 ABR 56/04 -), the Seventh Senate confirmed that these costs to be borne by the employer include the fees of a lawyer, whose involvement the works council has requested in a labor court decision-making process to exercise its rights under works constitution law may consider necessary. By appointing a lawyer, the works council acquires a right to exemption from the employer with regard to the resulting costs. Furthermore, the Seventh Senate decided that the legal fees from which the works council is to be exempted are liabilities to assets in the sense of of Section 55 Para. 1 No. 1 InsO if, after the opening of insolvency proceedings over the employer’s assets, the insolvency administrator initiates and continues a decision-making process pending in the first instance that was interrupted in accordance with Section 240 ZPO. It does not matter whether the legal fees were incurred before or after the opening of insolvency proceedings. With
Upon commencement of the decision-making process initiated by the employer and interrupted in accordance with Section 240 ZPO, the insolvency administrator takes over the decision-making process in accordance with Section 40 Para. 1 BetrVG, the employer’s obligation to bear the procedural costs incurred by the works council and creates a mass liability.