The works council must be able to act. The employer must provide the works council with the necessary materials and bear the cost of necessary training courses. However, what is necessary and what is not?
As a general rule, the employer bears the necessary costs arising from the work council’s work and must provide the works council with the materials needed for its work Section 40 (2) German Works Constitution Act (Betriebsverfassungsgesetz – “BetrVG”). What materials are necessary for the proper performance of the works council’s duties depends on the type and nature of the business.
The works council has the right to demand to be provided with materials. The works council is not normally authorised to purchase the materials that it deems necessary itself and then charge the employer for these costs. The employer has the right to choose between various suitable materials.
The question of whether something is necessary is not answered by the employer, but by the works council. The latter chooses at its discretion after a due assessment of the circumstances, taking into account its needs and the employer’s interests. If the employer takes the view that the materials that have been requested by the works council are not necessary, it must initiate so-called decision proceedings in order for the issue to be clarified by the competent labour court.
“Necessary materials” means all items needed by the works council for meetings, consultation hours and for the day-to-day operation of the works council. These materials mainly include office supplies. The works council has, in any case, a right to the joint use of the copying machines or printers available in the business; in view of the memory functions of modern devices and of how common such devices are today, the works council may even have the right to demand to be provided with its own devices. The quality of such materials must correspond to the customary standard in the business.
The works council must normally be provided with a notice board where it can post announcements and notices for the purposes of informing the employees. This notice board must be installed at a suitable place that is accessible to all employees.
In addition, the works council must be provided with relevant specialist literature. This includes, in particular, the most important labour/employment and social law texts, an up-to-date commentary on the German Works Constitution Act and a specialist labour/employment and social law journal. Whether and, if so, what further literature is needed depends on the concrete work to be performed by the works council.
All materials remain the employer’s property, with the exception of consumable materials, which become the property of the works council as a whole. If a new works council is elected, ownership of the existing files, for example, is transferred to this new works council.
To the extent necessary, the employer must provide the works council with the information and communication tools needed for its work.
In today’s digital working environment, the basic equipment of the works council includes a computer with the usual accessories (monitor etc.), internet access and a telephone. The employer only has to provide further equipment (for example, laptops or smartphones) where the relevant operational requirements make such equipment necessary. This may be the case where works council members travel extensively or where it is necessary that they can be reached flexibly.
The customary amount and quality of equipment in the business and the communication tools used by the employer itself can be used as points of reference for determining whether any particular pieces of equipment or tools are necessary. Under no circumstances is the employer required to provide any equipment or tools that go beyond the regular amount and quality of equipment in the business. The mere wish for “equality of arms” between the works council and the management of the business does not suffice for equipment to be considered necessary.
If the employer uses an intra-company information and communication system (intranet), the works council must be given the opportunity to create its own pages where it can provide information in accordance with its duties, without the employer having the right to exert any influence.
The works council must generally be enabled to acquire the knowledge needed to perform its duties. This includes not only basic knowledge about labour/employment and works constitution law but, depending on how the business is structured, also knowledge about special subject matters. In particular with regard to the latter, it must always be examined whether the situation in the individual business gives rise to questions or problems that require the involvement of the works council and for which training appears to be necessary in the light of the concrete level of knowledge of the respective works council member.
While training courses that provide basic knowledge will need to be attended by all works council members – except where such knowledge already exists – this is not the case with training courses dealing with special topics. With regard to the latter, it must be examined on a case-by-case basis whether knowledge about the topics dealt with in the training course is actually needed and, if so, how many members of the works council need to have that knowledge. Works council members who have received training can and should regularly be expected to share and use their knowledge.
Pursuant to Section 40 (2) German Works Constitution Act, the employer must bear the cost of training courses and educational programmes that provide necessary knowledge. In the case of training courses providing knowledge that is needed for the works council’s work (cf. Section 37 (6) German Works Constitution Act), the employer must always bear the costs. In the event that only part of the knowledge provided in a training course is needed, the employer only has to bear the costs in full if the topics needed account for more than 50% of the training course and participation cannot reasonably be limited.
As a formal requirement for the employer’s obligation to bear the costs, the works council must adopt a decision approving its member’s participation in the training course before the member participates. A subsequent decision approving the member’s participation does not suffice.
The principle of proportionality must also be observed. The works council must always verify that the training costs are compatible with the size and capacity of the business, also taking into account the contents and scope of the knowledge provided. The employer only has a reimbursement obligation to the extent that the costs incurred are within the limits of what is reasonable in the circumstances. A particularly attractive training location is definitely not a criterion.
If attending a training course is necessary, the employer must additionally reimburse the travel expenses and the cost of accommodation and meals. These costs must also be necessary, however, which will be checked independently.