Co-determination and participation of the works council

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Co-determination and participation of the works council

a) Co-determination in joint operations

In a joint operation, all companies that have joined forces to manage the operation are the owners of operational management power. With a resolution of May 15, 2007 ( 1 ABR 32/06 ), the First Senate decided that an individual company involved in the management of the joint venture is not passively legitimized for claims by the works council that relate to the implementation or omission of measures , which are subject to joint operational management power. In principle, one of the companies alone cannot exercise management power.

b) Co-determination in social matters

According to § 87 para. 1 No. 1 BetrVG, the works council has a say in questions regarding the organization of the company and the behavior of the employees in the company. The subject of the right of co-determination is the coexistence within the company and the cooperation of employees. The employer can influence and coordinate this through its management power by establishing rules of conduct or through other measures. With its resolution of February 13, 2007 ( 1 ABR 18/06 ), the First Senate confirmed its previous case law, according to which the organization of the company’s order also includes the order to wear uniform work clothing, which only serves to improve the external appearance of the company to promote the company. The works council has therefore, in accordance with § 87 Abs. 1 No. 1 BetrVG to help determine regulations regarding uniform staff clothing to be worn during service. The right of co-determination according to Section 87 Para. 1 No. 1 BetrVG also governs the question of who is responsible for providing staff clothing.

However, it does not extend to regulations as to who has to bear the costs resulting from a dress code. The question of bearing and distributing costs affects neither the order in the company nor the (orderly) behavior of the employees. It does not regulate the coexistence and interaction of employees in the company either directly or indirectly. In this respect, there is no so-called annex authority. The question of who has to bear the costs arising from a dress code and to what extent is a (legal) question that must be answered according to the relevant individual contract, collective agreement, statutory provisions or, if applicable, those contained in a voluntary company agreement.

According to § 87 para. 1 No. 3 BetrVG, the works council has a say in the temporary reduction or extension of normal working hours. The content of the right of co-determination is the regulatory question of whether additional work requirements should be covered by a temporary increase in regular working hours and which employees or groups of employees, if any, should carry out this work and to what extent.

With its resolution of April 24, 2007 ( 1 ABR 47/06 ), the First Senate followed up on its previous case law on this codetermination issue and decided that standard working hours within the meaning of Section 87 Para. 1 No. 3 BetrVG for part-time employees whose regular individual working hours are. A temporary extension is subject to co-determination. An extension is temporary in the sense of the regulation if the otherwise relevant time volume is deviated from for a manageable period of time and then returns to the usual operational duration. The employer’s existing planning at the time of the change is decisive.

The works council has the right to co-determination in accordance with Section 87 (1). 1 No. 3 BetrVG not only in cases of unilateral ordering of a temporary extension of working hours, but also if such an extension is agreed with the employee. Das Mitbestimmungsrecht setzt außerdem einen kollektiven Tatbestand voraus. This occurs when a regulatory issue arises that affects the collective interests of the company’s employees. The number of employees for whom overtime or overtime is ordered or with whom it is agreed is irrelevant.

A collective offense therefore exists when the question needs to be regulated as to whether and to what extent overtime is to be carried out to cover an existing work requirement. The temporary increase in working hours agreed with a part-time employee to cover additional operational needs is therefore generally a requirement in accordance with Section 87 (1). 1 No. 3 BetrVG extension of standard working hours subject to co-determination.

In contrast, according to a decision of the First Senate of May 15, 2007 ( 1 ABR 32/06 ), which confirms previous case law, the permanent increase in the amount of an employee’s regular weekly working hours is not subject to the co-determination of the works council in accordance with Section 87 Paragraph. 1 No. 2, 3 BetrVG. According to § 87 Abs. 1 No. 2 BetrVG, the works council only has a say in the distribution of the agreed regular working hours across the individual days of the week, in accordance with Section 87 Para. 1 No. 3 BetrVG, only the temporary reduction or extension of normal working hours requires the consent of the works council.

c) Co-determination in personnel matters

According to a resolution of the First Senate of January 25, 2005 ( 1 ABR 59/03 ), an increase in the regular weekly working hours of an employee can result in a new employment in accordance with Section 99 Para. 1 sentence 1 BetrVG. This is the case if the increase is not insignificant in terms of duration and scope. The First Senate has set a not inconsiderable duration of the increase in working hours based on Section 95 Paragraph. 3 BetrVG for a period of more than one month, he assumed a not insignificant extension of the scope of working hours if the employer had advertised the job in question or should have advertised it due to Section 93 BetrVG.

The Senate is sticking to this following a resolution of May 15, 2007 ( 1 ABR 32/06 ). According to this decision, a not inconsiderable increase may result solely from the quantitative extent of the individual time increase. However, extending the regular weekly working hours of a full-time employee by five hours does not typically constitute a significant increase in the previous scope and is therefore not a discontinuation.

d) social plan

In its judgment of February 13, 2007 ( 1 AZR 163/06 ), the First Senate decided that the company parties can make the right to a social plan severance payment in the event of the employee’s own termination caused by the employer subject to the condition that the employee has previously received an unreasonable amount of compensation A job offer was made. In doing so, the operating parties are not violating the principle of equal treatment in Section 75, which they must observe. 1 sentence 1 BetrVG. The unequal treatment associated with this regulation is at least objectively justified because the operating parties can assume, as a general rule, that the employee who resigns “prematurely” will suffer no or fewer disadvantages than the other employees as a result of the change in company. This does not contradict the fact that employees who have found a new job can also suffer economic disadvantages. It is at the discretion of the operating parties to what extent they want to compensate for these disadvantages.