Retail and Consumer Goods21.01.2021 Newsletter
E-Commerce - not possible without the works council
The technical implementation of distribution systems* usually involves the use of employees' personal data - for example, when they operate Click & Collect IT systems. This makes it imperative for dealers to comply with data protection regulations. For this reason, the involvement of the works council is often unavoidable. But does the complete ERP (Enterprise Resource Planning) system have to be negotiated with the works council if only online orders are concerned?
Introduction of IT systems
In classic multichannel sales, different, separately operated sales channels such as online shops and retail stores are offered to customers. In addition, retailers also use so-called omnichannel and cross-channel distribution systems. In this case, the inventory is sold in combination via online shops and retail stores. In many areas the current store closures allows only online sales, with goods partially being shipped from the stores.
The introduction of cross- and omnichannel sales models is primarily shaped by the company’s requirements and the customer’s wishes. At the same time, however, the relevant co-determination rights of the works council need to be considered. Delays caused by the necessary negotiations to conclude a shop agreement on a planned "go live" or upgrades of the distribution system due to complex software solutions must be avoided.
If employees use certain IT systems in stationary trade for different e-commerce concepts, this does not fall under the regulatory conduct that is subject to co-determination pursuant to § 87 (1) No. 1 German Shop Constitution Act [Betriebsverfassungsgesetz, BetrVG]. If the employee is instructed to scan a product ordered online from the store's inventory, to pack it ready for collection/dispatch and to update the inventory, this is merely a concretisation of the work obligation that is not subject to co-determination.
However, when an employee logs on to the IT system using an individualised ID, the system records which employee processed the transaction in question in the stationary store. On a purely objective basis, this makes the system suitable to monitor the conduct or performance of the employees concerned. This triggers the co-determination in technical matters pursuant to § 87 (1) No. 6 BetrVG: The works council must agree to the system used and the way in which the employees' personal data is used.
Data protection and other regulatory issues
It is of particular importance here that arrangements can be reached with the works council which, as a legal basis, allow the processing of the personal data of employees - but not of customers - in accordance with § 26 (4) German Data Protection Act [Bundesdatenschutzgesetz, BDSG].
In practice, the data protection authorities are evidently much less critical of the legitimacy of data processing on the basis of a shop agreement than they are of the justification of data processing for the performance of the employment relationship pursuant to § 26 (1) BDSG. This differentiation primarily becomes decisive in the question of the necessary storage period of the personal data, but also with regard to evaluation possibilities.
A focal point in the negotiations with works councils in business practice is the connection of the sales IT systems to the ERP system. Here, one should precisely check which data is being sent to or transmitted by the ERP system. As a rule, there is no personal reference, which means that the sales IT system does not simultaneously trigger the co-determination for the ERP system.
Other services provided by the software operator, such as maintenance and updates, must be taken into account when negotiating the shop agreement. For example, an update carried out in the background can lead to changes in the scope of the personal data collected or the evaluation possibilities. This may result in a situation that is contrary to co-determination. Since software updates often have to be carried out urgently, i.e. within a few days or hours, this should be accounted for in shop agreements.
Finally, the impact on remuneration systems cannot be ignored. If indicators from the sales systems are to be used as the basis for calculating variable remuneration components, this must be agreed separately with the works council.
* These distribution systems include, in particular, the customer options Click & Collect (collection of the goods ordered online in the store), Order in Store (ordering the product in the store and delivery to the customer's home), Reserve & Collect (online reservation, purchase and payment of the goods in the store), Return toStore (return to the store of the product purchased online), Instore Availability (online check of availability in the store), Ship to Store (collection of online articles in the store) and Ship from Store (linking of the online shop with the stock at the stationary store).