No obligation of the works council to provide information under the Transparency in Wage Structures Act – No right to view gross pay lists

Federal Labor Court, ruling of July 28, 2020 – 1 ABR 6/19

If the employer effectively takes over the response to requests for information in accordance with sec. 10 of the German Transparency in Wage Structures Act, the works council has no right to inspect and evaluate the gross pay lists in accordance with sec. 13 (2) sent. 1 of the Transparency in Wage Structures Act. This was established by the Federal Labor Court (BAG) on July 28, 2020.

In the Federal Labor Court’s opinion, the works council’s claim under sec. 13(2) sent. 1 of the Transparency in Wage Structures Act corresponds to the principle that the works council should respond to the individual information claims of employees. Pursuant to sec. 14(1) of the Transparency in Wage Structures Act, the employer may, however, generally or in specific cases, take over the task of responding to provide the information himself. If he does so, the works council’s right of inspection and evaluation under sec. 13(2) sent. 1 of the Transparency in Wage Structures Act does not apply.

The reason for the dispute was that the works council not only wanted to have access to the employees’ payrolls but also demanded that the lists be made available in a certain electronic file format. According to sec. 80(1) no. 2a, subsection 2, sent. 2 of the German Works Constitution Act, the work council only has a right to view. They therefore attempted to obtain a physical copy of the payroll lists by means of sec. 13(2) sent. 1 of the Transparency in Wage Structures Act.

The previous instances had already rejected a claim for a physical copy of the payroll records. This was mainly based on the wording of secs. 13.2 and 13.3 of the Transparency in Wage Structures Act, which uses the terms to “to inspect” or “to view the lists”. A right to have the lists transferred to them did therefore not follow from that phrasing. The works council could also fulfil its obligation to evaluate pay lists by mere inspection. Since the written reasons for the Federal Labor Court’s decision are not yet available, it remains to be seen whether the highest labor court agreed with the view of the lower instances or left the question open, because in the present case a right of inspection and evaluation did not exist in the first place according to the Federal Labor Court’s findings.

The Federal Labor Court’s decision of July 28, 2020 shows once again that the employer is well advised to take the responsibility for answering requests for information under sec. 10 of the Transparency in Wage Structures Act and not to leave it to the works council, e.g. also to avoid a dispute about the transfer of gross pay lists.