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The co-determination of the works council Principle: Trustful cooperation Monthly conferences.

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Presentation on theme: "The co-determination of the works council Principle: Trustful cooperation Monthly conferences."— Presentation transcript:

1 The co-determination of the works council Principle: Trustful cooperation Monthly conferences

2 Facts about the works council  Legal basis: Works Council Constitution Act (Betriebsverfassungsgesetz-BetrVG 1972)  Formation: in companies with at least 5 employees  Term of office: 4 years  Size: depends on the number of employees  Performance of tasks: in particular by employees released from duties (DOR: 3)  Area of responsibiltity: co-determination in operating matters

3 The different types of co-determination Right of consulation, information and notification Example: installation and re-organising of workplaces, changing of operational prodecure, human resources planning Right to be heard Example: dismissal of an employee Right of approval and right to refuse consent Example: new employment or in case of transfer of employees Right of initiative Example: operating agreements IT area Rights of participation Example: § 87 BetrVG – further information see later

4 Main rights of co-determination of Deutsche Oper am Rhein (1)True rights of co-determination, § 87 BetrVG (2)Individual personnel measures, § 99 BetrVG (3)Termination of employment relationships, § 102 BetrVG However: Tendenzbetrieb § 118 BetrVG (No co- determination in artistic areas)

5 (1) True co-determination Method: previous agreement to employer´s intended measure; the employer has to involve the works council on its own initiative; the works council has a partial right of initative Basis: catalogue of § 87 I BetrVG, provided there is not a statutory or collective rule and the measure shall apply on a collective basis

6 Examples from the catalogue, § 87 I BetrVG  Questions concerning the organisation of the company and the behaviour of the employee  Starting and ending of the daily working time as well as breaks and the allocation of working time in respect of individual days of the week  temporary shortening or lengthening of working time  Introduction and application of technical equipment which are intended to observe the employee‘s behaviour and efficiency  Form and administration of social services whose sphere of influence is limited to the company or enterprise

7 Legal consequences of missing agreement Arbitration committee (Einigungsstelle): The arbitration committee is an in-house arbitration board. It meets, negotiates and decides whenever the work council and the employer cannot find any agreement It is a complexe and an expensive procedure

8 Legal consequences of missing cooperation The work council has the right to demand the deletion of the unconstitutional measure and may claim for omission in future

9 Co-determination regarding to individual personnel measures § 99 BetrVG Types of personnel measures:  hiring  transfer  payment

10 Type of co-determination regarding to individual personnel measures information, consent and refusal to consent 1.Employer´s obligation to inform  prior notice of the personnel measure  Presentation of the application documents

11 2. Consent of the works council  The employer has to obtain approval for the measure Type of co-determination regarding to individual personnel measures

12 3. Right to refuse the consent Requirements: Compliance of one of the 6 facts of § 99 II BetrVG  Example: right to refuse the consent if a vacancy notice wasn´t published in the company according to § 93 BetrVG (number 5) Observance of a space of time of one week, stating reasons for the refusal in written form; § 99 III BetrVG, otherwise: fiction of consent (Zustimmungsfiktion)

13 Legal consequences in case of the refusal to consent to individual personnel measures  Employer is not allowed to carry out the measure Exception: in case of urgency (§ 100 BetrVG): preliminary execution is possible  Consent of the work council can be replaced by labour court

14 co-determination regarding to termination Types of participation: the right to be informed, to be heard, to comment and to object The right to be informed The employer is obligated to inform the workcouncil about the intended termination and has to provide reasons for it

15 The right to demand a hearing The employer must consult the work council before giving notice of termination  Legal consequences for missing consultation: The termination is invalid

16 The right to comment The work council can  give its consent to the termination  keep silent (consequence: fiction of consent (Zustimmungsfiktion) in a week´s time)  object to determination (§ 102 III BetrVG)

17 Legal consequences in case of objection At first continuance of the employment under the following requirements  the employee demands at labour court the declaration the work relationship has not been risovled by termination

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