Works Council Co-Determination Rights in Desk-Sharing

The extent to which such measures are subject to co-determination by the works council was recently addressed by the Regional Labor Court of Baden-Württemberg (Case No.: 21 TaBV 7/24). The court ruled that the introduction of desk-sharing is generally not subject to co-determination, but isolated aspects that affect the orderly conduct in the workplace can be.

Background

In October 2023, the employer introduced a new office concept that involved redesigning open-plan offices. The plan included implementing “desk-sharing” and a “clean-desk policy,” which requires employees to clear their workspaces at the end of each day. The works council requested the establishment of a conciliation committee, arguing that the entire project was subject to co-determination. However, the labor court rejected the requests, stating that the works council’s claimed co-determination rights were clearly non-existent. The appeal to the Regional Labor Court of Baden-Württemberg was partially successful.

Decision

The Regional Labor Court of Baden-Württemberg clarified that not the entire introduction and implementation of the desk-sharing concept is subject to co-determination by the works council. However, it is also not clearly excluded that co-determination rights concerning orderly conduct under Section 87 (1) No. 1 German Works Constitution Act (BetrVG) could apply. The concept includes two aspects that can be separated from the main concept and for which the requirements to establish a conciliation committee are met:

1. Storage Options for Personal Items: The regulation of the storage of private items could constitute a work instruction, so that work behavior would be affected. A distinction must be made between the removal of personal items from the workplace for periods in which the employee does not perform any work there, as well as the regulation of where these items can be taken. The latter involves controlling which and how many private items can be brought into the company (e.g. for space reasons).

2. Use of Office Spaces for Breaks and Spontaneous Meetings: By planning to use some office spaces for both breaks and impromptu meetings, it could not be ruled out that both the company coexistence and collective interaction of the employees would be affected. Employees who would visit the break room for recreational purposes would inevitably not only experience a specialist break-related discussion, but also regular work in their own department or another department. Their break behavior would have to adapt to this other use.

The implementation of a booking system for a desk-sharing concept may also require co-determination with regard to the use of technical equipment. However, advance booking of desks was not provided for in the office concept to be decided.

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