Employment Law16.12.2021 Newsletter
On 24 November 2021, the new coalition agreement of the forthcoming government of SPD, Bündnis90/Die Grünen and FDP was published. In the form of a short series of articles, we would like to inform you of the statements contained in the coalition agreement on labour law and the concrete effects of the plans. Today’s topic: the further development of company co-determination.
“Works councils shall decide for themselves whether to work in analogue or digital form. Within the framework of the constitutionally required standards, we will be testing online works council elections in a pilot project. We are creating a contemporary right of unions to digital access into workplaces that matches their analogue rights." (p. 71) [...] In future, we will classify the obstruction of democratic co-determination as an official offence. [...]."
In the course of the German Works Council Modernisation Act [Betriebsrätemodernisierungs-gesetz - BReModG], the legislator still shied away from allowing the works council to freely decide on digital work. Thus, although the new § 30 of the German Shop Constitution Act [Betriebsverfassungsgesetz - BetrVG] enables works councils to hold virtual meetings, face-to-face meetings continue to have priority. The future "traffic light” coalition wants to put an end to this by giving works councils the right to choose.
Despite the pandemic, online works council elections are not permitted according to the current version of the BetrVG and the Electoral Regulations [Wahlordnung - WO]. A postal vote may only be arranged under the conditions of § 24 WO. The regular works council elections are held between 1 March 2022 and 31 May 2022. Whether the future federal government will implement online elections as a pilot project before the next regular works council election is a noble ambition in terms of time but, given the current corona situation, would make particular sense in 2022 as a pilot project.
The German Federal Labour Court [Bundesarbeitsgericht - BAG] has already developed a practicable framework for trade union access to the workplace, which also enables trade unions represented in the workplace to have a digital right of access to employees. Thus, there actually is no regulatory deficit; rather, we can expect clarifications in the law.
If an obstruction of democratic co-determination is classified as an official offence, then public prosecutors will have to investigate in future if, for example, they should become aware of a case of thwarting or obstructing works council elections, works council work or of preferential treatment or discrimination of works council members on grounds of their function. According to the current § 119 BetrVG, such violations are only prosecuted if works councils or trade unions file a complaint within a period of three months. However, classification as an official offence is a very sensitive issue, above all because there are still many unresolved legal issues at present, e.g. in the context of works council remuneration. Before the legislator imposes this criminal risk on employers in particular, the outstanding legal issues need to be clarified with legal certainty first.