Works council cannot prevent reopening of a workplace

Several labor courts have already had to deal with applications for an interim injunction from works councils trying to prevent the reopening of the company after the COVID-19 pandemic because no agreement had yet been reached between the parties. In its decision of May 4, 2020, the Hamm Labor Court has now stated for the first time that in such a case the works council cannot prevent the reopening of a plant, and in particular cannot demand the closure of a plant, even if co-determination rights have been disregarded.

Hamm Labor Court, Order of May 4, 2020 -2 BVGa 2/20

The owner of a retail store had concluded a works agreement on short-time work and a company closure until May 31, 2020. Due to the gradual reopening of the economy, the employer wanted to reopen the store as early as April 28, 2020 and employ the workforce for 20% – 80% of their regular work hours. The employer allocated working hours to the employees by means of a staff deployment plan and they resumed work on April 28, 2020. The works council did not agree to this. Negotiations on the implementation of the “SARS-CoV-2 Occupational Safety and Health Standard” (decree of the German Federal Ministry of Labor and Social Affairs of April 16, 2020) were not conducted with the works council either. As a result, the works council initiated interim injunction proceedings to prevent the reopening of the retail store or alternatively to achieve a closure of the store.

The Labor Court came to two conclusions:

On the one hand, the employer is not allowed to assign working hours to employees without the consent of the works council or the replacement of the consent by the conciliation committee. The parties had agreed to suspend all work duties until May 31, 2020 by means of a works agreement. The early recall to work would therefore require the express consent of the works council. The works council’s right to injunctive relief results directly from the works agreement on the one hand and from sec. 87 (1) no. 2 and 3 of the Works Constitution Act on the other hand.

Other than that, however, the Hamm Labor Court refused to close the store until a works agreement on risk assessment in accordance with the “SARS-CoV-2 Occupational Safety and Health Standard” had been concluded. The decree of the Federal Ministry of Labor and Social Affairs does not provide a legal basis for such a legal consequence until a regulation has been concluded between the parties. The works council cannot base its decisions on sec. 87 (1) no. 7, of the Works Constitution Act, because this provision presupposes a legal norm, which is lacking in the present case. The court is convinced that the occupational health and safety standards of the Federal Ministry of Labor and Social Affairs are not such a legal norm, so that the provision of sec. 87 (1) no. 7 of the Works Constitution Act does not apply. However, even if the aforementioned provision were to apply, the works council would not be entitled to claim for injunctive relief directed towards a closure of the store and a prohibition of the employment of employees until a works agreement on health protection had been concluded. Rather, the works council would have to appeal to the conciliation committee in order to achieve the enforcement of occupational health and safety standards in the company.

The decision of the Hamm Labor Court may appear contradictory at first glance because, on the one hand, a store closure cannot be demanded while, on the other hand, the demand that the employees (who are necessary to operate the store) return to work early is denied until the works council has given its consent. In this respect, however, it should not be forgotten that business operations could ultimately be maintained by “third parties” who do not have employee status and are therefore not represented by the works council.

Fortunately, the Hamm Labor Court’s decision deviates from previous, comparable labor court decisions in favor of employers. The Neumünster Labor Court (decision of April 28, 2020 – 4 BVGa 3a/20), the Berlin Labor Court (decision of April 27, 2020 – 46 AR 50030/20) and the Stuttgart Labor Court (decision of April 28, 2020 – 3 BVGa 7/20) had granted the respective works councils extensive co-determination rights in the implementation of the SARS-CoV-2 Occupational Safety and Health Standard and punished their disregard with site closures in interim injunction proceedings.