Important changes in Works Constitution Law

The Act to Promote Works Council Elections and Works Council Activities in a Digital Working World (in short: Works Council Modernization Act) has come into force on June 18, 2021.

The goal of the law is, among other things, to facilitate the work of works councils and to extend their co-determination rights. The German Works Constitution Act (German: Betriebsverfassungsgesetz – BetrVG) has undergone extensive changes and additions in the course of this, which employers should definitely be aware of.

The following changes are to be observed with immediate effect:

• Works council meetings in person still have priority, but virtual participation by means of video and telephone conferences is now permanently permitted. A mandatory prerequisite is that the framework conditions for this – while ensuring the priority of meetings in person – are defined in the works council’s rules of procedure. In addition, there must be no objection from at least a quarter of the works council members (within a fixed time period) and confidentiality must be ensured, i.e. third parties must not be able to take note of the content of the meeting. It is therefore also possible for the works council members to participate in a works council meeting partly in person and partly virtually.
• The works council alone decides whether to make use of the option of a (partially) virtual works council meeting.
• Works council members participating virtually in a works council meeting are deemed to be present and their voice taken into account when the quorum is examined. Confirmation of participation must be provided in text form and is possible, for example, by e-mail, messenger or chat.
• The above amendments also apply to the joint and group works council, representation of young people and trainees, the speakers’ committee, the economic committee and the committees of the works council. However, the law does not foresee such extension to the representation of severely disabled employees.
• The law also lacks a corresponding provision according to which staff meetings can also be held virtually, so that they must continue to be held in person.
• Resolutions of the conciliation committee can now also be recorded in electronic form and provided with a qualified electronic signature by the chairman (§§ 76, 77 BetrVG).
• The possibility of virtual proceedings before a conciliation committee will expire on June 30, 2021 and will not be extended by the law. From July 1, 2021, it will once again be mandatory to conduct these proceedings in person.
• Works agreements can now also be concluded in electronic form, whereby a (simple) electronic signature is required from both the employer and the works council (§ 77 (2) sent. 3 BetrVG). The same also applies to the conclusion of balance of interest agreements and social plans (§ 112 (1) sent. 1 BetrVG).
• Furthermore, a new provision is included in § 79a BetrVG, according to which the employer now bears responsibility under data protection law for personal data processed by the works council.
• In addition, from now on, the involvement of an expert is always considered necessary within the meaning of § 80 (3) BetrVG when it comes to the introduction or application of artificial intelligence (AI). This is likely to lead to significant additional costs for employers, as the works council will additionally be able to consider the involvement of legal counsel to be necessary. Regrettably, there is also no definition of “AI” in the amendment to the law.
• The right of co-determination for selection guidelines also applies when AI is used (§ 95 (2a) BetrVG).
• Furthermore, a new co-determination provision was added to § 87 (1) No. 14 BetrVG (German Works Constitution Act). Accordingly, the works council may have a say in the design of mobile work using information and communication technology. This includes, for example, the accessibility of employees, the use of work equipment, the reimbursement of expenses, safety aspects, etc. There is however no right of co-determination if mobility is already evident from the nature of the work to be performed, e.g. in the case of technicians/mechanics.
• However, according to the newly introduced § 87 (1) No. 14 BetrVG, the works council has no right of initiative when it comes to introducing the possibility of mobile working. Neither the works council nor the employees can force mobile work.
• In addition, under a newly inserted § 96 (1a) BetrVG, a conciliation committee must be called upon to mediate in cases where the employer and works council cannot agree on vocational training measures.

In addition to the new regulations mentioned above, there are important changes regarding the election procedure, which will be decisive for the regular works council elections next spring. We will inform you about these changes in a separate newsletter before the works council elections.