New Works Council – Same Old Questions?

What training can the works council claim?

The works council may require the employer to release members from work duties to attend trainings if the training content is necessary for works council work. Where prior knowledge is lacking, works council members must therefore be granted training on the fundamentals of works constitution law and general employment law. If a member has already participated in such training during an ongoing term of office, however, there is no general entitlement to repeat or refresher training.

Training on specialized topics may also be necessary for the performance of works council duties. In such cases, it is generally sufficient for individual members of the body to receive the training. Whether training on a particular topic is necessary for the proper performance of works council work must be assessed on a case-by-case basis, in particular by reference to the issues currently pending in the establishment.

May the employer refer the works council to online training?

The works council is obliged to burden the employer only with costs it may reasonably consider appropriate. When assessing necessity, the works council must take into account the operational circumstances and the financial burden imposed on the employer by attendance at the training, and must ensure that the purpose of the training is proportionate to the costs. Training costs are not necessary if the works council can reasonably acquire comparable knowledge in another, less costly manner. From these principles, however, the labor courts do not derive any blanket priority of online training over in-person training. It must be reviewed carefully in each individual case whether the generally less expensive online training provides comparable knowledge. The works council’s margin of assessment is, however, broad.

How are released works council members to be remunerated?

The statutory rules governing the remuneration of works council members are very strict. Serving on a works council is an honorary office and is performed without separate remuneration. Remuneration relates solely to the contractual work owed by the works council member. Any preferential treatment or disadvantage on account of the office is prohibited and may even be subject to criminal liability.

The works council member must continue to receive the remuneration he or she would have received had he or she not performed works council duties but instead continued to perform the contractual work owed. This is known as the loss-of-earnings principle („Lohnausfallprinzip“). In addition to base remuneration, the works council member must receive all special payments, premiums and allowances to which he or she would be entitled absent release from work duties or time off from work.

The BetrVG further provides that the remuneration of works council members may not be set lower than that of comparable employees with typical career progression within the establishment (Section 37(4) sentence 1 BetrVG). In other words, during their term of office works council members benefit from salary increases received by comparable employees. The comparison group comprises employees who, at the time the works council member assumed office, performed work that was essentially equivalent in terms of qualifications. It is advisable to establish and document comparison groups for newly elected works council members at the very beginning of the term of office. Particularly where a works council member has served on the works council for a long period, the question regularly arises how that member’s remuneration would have developed over the years. For this purpose, it must be possible to reconstruct the works council member’s hypothetical career progression.

What options for action does the employer have?

The BetrVG permits employers and works councils to conclude a works agreement governing the procedure for determining comparable employees, i.e., the formation of comparison groups. The operating parties may therefore set parameters for the recurring question of comparability. If comparability is specified in a works agreement, a labor court may review that determination in the event of a dispute only for manifest error. By contrast, a works agreement may not regulate the specific amount of remuneration payable to works council members.

What happens to the “old” works agreements concluded between the employer and the previous body?

Works agreements concluded by the previous works council with the employer remain valid and continue to apply. The same applies to resolutions of the works council that have external effect, such as consent to a contemplated dismissal. The position is different, for example, with respect to the internal rules of procedure of the previous works council. These cease to apply upon the new election.

What happens to the composition of the combine works council („Konzernbetriebsrat“) and the central works council („Gesamtbetriebsrat“)?

The central works council and the combine works council are standing bodies. They continue to exist beyond the election periods of the individual works councils. Employees of the establishment do not elect the members of the central and/or combine works council. This is solely the responsibility of the local works councils. Following the election, the members to be delegated to the central and/or combine works council must be newly determined. Delegation to the respective bodies is effected by resolution of the works council. The works council may resolve that the members to be delegated are to be determined internally by election.

In what position must former works council members whose release from work duties ends be employed?

When a works council member’s release from work duties ends — either because he or she was not re-elected to the works council at all or because other members were elected for release — the former works council member returns to his or her position. He or she must be employed in a position corresponding to the current position of an employee in his or her comparison group. The former member must be treated as if he or she had undergone the typical career progression within the establishment without the release, including any promotions or higher classifications granted to comparable colleagues. This applies only to the extent that the former works council member possesses the qualifications required for the professional advancement. Within one year after the end of the release from work duties, the former works council member must, to the extent possible within the establishment, be given the opportunity to make up typical career development within the establishment that was missed due to the release.

What if no such position is available?

The employer may refuse to assign equivalent work if compelling operational reasons prevent it. Such a compelling reason may exist, for example, if no corresponding vacant position is available. The former works council member cannot require the employer to create an equivalent position or to dismiss another employee in order to make a position available for him or her.