For a long time now, the use of digital working tools such as telephone and video conferencing in particular has been indispensable in the working world of all companies. If they have so far mainly served to effectively organise operational work, they are becoming extremely important in these times of the corona pandemic in order to be able to maintain everyday working life at all. One area of labour law has so far lagged far behind digital communication - at least in statutory terms - namely co-determination under works constitution law. In order to guarantee the ability of works councils to work even in the current corona crisis, the German Bundestag has now passed (temporary) new regulations.
The question of whether works councils can hold meetings in the form of telephone or video conferences and thereby effectively pass resolutions has been the subject of intense debate in the literature for some years now. In principle, decisions of the works council can only be taken at a proper works council meeting. Pursuant to Section 33 (1) of the German Works Constitution Act (Betriebsverfassungsgesetz, BetrVG), they must be adopted by a majority of the votes of the
members present. Due to the attendance requirement, resolutions may not be passed by circulation. A considerable number of literature opinions consider works council meetings by means of video conferencing to be inadmissible. These opinions are mainly based on the justification that this would violate the attendance requirement for the vote pursuant to Section 33 (1) BetrVG, as well as the principle of non-publicity codified in Section 30 (4) BetrVG. Others, however, assume that virtual works council meetings and votes are admissible if the vote is open and all works council members are involved.
The German Works Constitution Act simply does not provide for works council meetings via video or telephone conferences. The Act is based on real works council meetings. The current corona crisis makes it clear once again that this is no longer appropriate. Although the fact that works council members are not on site due to the closure of their plants or work from home to avoid personal contacts is a particularly exceptional situation, it highlights the need for the use of digital means of communication in works council work as well.
Decisions of the works council are only effective if the meeting is formally and properly conducted.
Companies/undertakings often - even before the corona pandemic - use arrangements whereby both the employer and the works council contractually undertake not to complain about the formal ineffectiveness of works council decisions as a workaround solution. Although this is a very widespread practice, it is not entirely risk-free. Even if one adheres to the arrangement and its admissibility and effect, there is still uncertainty as to whether an employee can invoke the invalidity of a works council decision which was made in an incorrect form. An example of this is the works
council's decision by video conference during a works council hearing on an intended termination. According to the case law of the Federal Labour Court, the arrangement only entitles and obliges the employer and the works council to act at the level of works constitution law, whereas the arrangement does not have any normative effect with regard to the employment relationships of the employees. There is therefore an increased risk of legal action by employees or other third parties such as the Employment Agency.
In this context, and in order to ensure that works councils are able to continue to operate during the corona pandemic, the German Bundestag passed an amendment to the Works Constitution Act on 23 April 2020 with the "Work of Tomorrow" Act (Arbeit-von-morgen-Gesetz). The Act contains further adjustments as a reaction of the Federal Government to the corona crisis.
Within the framework of a ministerial declaration, the Federal Minister of Labour had already stated in March that his department was of the opinion that participation in a works council meeting by means of video or telephone conference, including online applications such as WebEx meetings or Skype, should be admissible in the current situation. This applies both to the participation of individual works council members using these tools or to a virtual works council meeting. Decisions adopted at such a meeting shall be effective (https://www.bmas.de/DE/Presse/Meldungen/2020/arbeit-der-betriebsraete-unterstuetzen.html).
The draft of the legal basis has now been submitted, which provides for an amendment to the Works Constitution Act. The German Bundesrat will vote on the corresponding act of objection (Einspruchsgesetz) in its session on 15 May 2020.
The plan is to give works councils the opportunity to adopt decisions also by means of video and telephone conference as long as it is ensured that third parties cannot take note of the contents of the meeting, with the introduction of a new Section 129 BetrVG, A recording shall not be permitted. The rule is to apply provisionally to works councils until 31 December 2020 and is to take effect retroactively from 1 March 2020, so that decisions already adopted virtually may be legally effective. This also applies to conciliation committees in order to ensure that works councils are able to act and reach a quorum, while at the same time preventing health risks arising from attendance meetings. For a limited period until the end of the year, it should also be possible to hold works meetings audio-visually.
Corresponding amendments are also planned in the German Federal Staff Representation Act (Bundespersonalvertretungsgesetz, BPersVG) and in the various Land Staff Representation Acts (Landespersonalvertretungsgesetz, LPersVG).
Even though this change in the law is certainly to be welcomed, the question arises as to why digital decision-making is now only permitted for a limited period until the end of the year. It would be more desirable for both works councils and employers to be able to take advantage of such an opening clause also for periods after the corona pandemic. The corresponding change is all the more necessary for the period beyond 31 December 2020, since the temporary amendment that has now been passed should be an indication that the previous BetrVG - at least as the legislator understands it - does not actually permit digital decision-making.