17.04.2020 Newsletter

Corona Crisis - Virtual Shop Constitution

(Last update: 1. June 2020)

Works council meetings, economic committee and conciliation board via video and telephone conference

1. Threat of the invalidity of works council resolutions

The coronavirus pandemic is making the work of the works council more difficult, as face-to-face meetings are often not possible. This threatened to bring companies to a standstill on issues relevant to co-determination.

Against this background, on 23 March 2020 the German Federal Ministry of Labor and Social Affairs [Bundesministerium für Arbeit und Soziales - BMAS] published a ministerial declaration by Hubertus Heil dated 20 March 2020. According to this, in the current situation works council meetings are permissible in exceptional cases via video conference or telephone conference, including online supported applications such as WebEx meetings or Skype.

This approach has been widely criticized as the current legislation requires that works council meetings are not public and that resolutions have to be adopted by a majority of those present.

Many companies had nevertheless made procedural arrangements with the works councils to avoid a standstill on co-determination-related issues or gave unilateral assurances that the employer would not contest the formal validity of resolutions adopted by the works council.

2. Reaction of the legislator

In order to finally clarify the existing legal uncertainty and to secure the works council's ability to act and adopt resolutions in times of the corona pandemic, the Federal Government had reacted to pressure from employers' associations, trade unions and works council representatives. By communication of the Federal Government dated 9 April 2020, it introduced a new regulation in the form of § 129 BetrVG n.F. (new version), which was only adopted by the Bundestag on 20 May 2020 after a distinct delay. The wording of the new regulation is as follows:

§ 129 BetrVG special regulations arising from the Covid 19 pandemic.

(1) Participation in meetings of the works council, company-wide works council, group-wide works council, the youth and trainee delegation, the company-wide youth and trainee delegation and group-wide youth and trainee delegation, as well as the adoption of resolutions, may take place by means of video and telephone conference if it is ensured that third parties cannot gain knowledge of the content of the meetings. Recording is not permitted. § 34 (1) sentence 3 shall apply subject to the condition that the participants confirm their presence to the chairman in text form. The same applies to the committees formed by the bodies named in sentence 1.

(2) Paragraph 1 sentences 1 and 2 shall apply accordingly to the conciliation board and the economic committee.

(3) Meetings in accordance with §§ 42, 53 and 71 may be held using audiovisual equipment if it is ensured that only persons entitled to participate can gain knowledge of the content of the meeting. Recording is not permitted.

This introduced a legal basis in the German Shop Constitution Act for the use of technical facilities such as telephone or video conferencing for works council activities. The new regulation provides for participation in works council meetings as well as the adoption of resolutions via video and telephone conference. At the same time, however, it must be ensured that the contents of the meetings are protected from unauthorized third parties. A recording of the meetings is expressly not permitted (§ 129 (1) BetrVG).

Participation in meetings and the adoption of resolutions by means of video and telephone conference also applies to conciliation boards and economic committees (§ 129 (2) BetrVG).

In addition, paragraph 3 of the new regulation stipulates that works councils and works meetings can be held using audiovisual facilities. Here as well, it must be ensured that the content of the meetings is protected from access by third parties and that recordings are not permitted.

3. Retroactive effect of the new legal regulation

In order to also achieve legal certainty with regard to resolutions which have already been adopted virtually in the meantime, § 129 BetrVB took effect retroactively from 1 March 2020 with its publication in the German Federal Gazette [Bundesgesetzblatt] on 28 May 2020. This has also rendered any past procedural arrangements or unilateral declarations by the employer obsolete.

Whilst the draft law still provided for a limited period of validity until 31 December 2020 in what was then paragraph 4 of the new regulation, this was deleted from the regulation during the legislative procedure. This means that virtual works council meetings will continue to be possible in the future.

4. Further new regulations

With § 129 BetrVG, new version, special provisions comparable to those for the representative body, the European works council or the SE works council have entered into force

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Jörn Kuhn

Jörn Kuhn

PartnerAttorneySpecialized Attorney for Employment Law

Bockenheimer Landstraße 2-4
60306 Frankfurt am Main
T +49 69 707968 140
F +49 69 707968 111