Case note: Federal Labour Court (BAG), 5 December 2007 – 7 ABR 72/06.
The Works Constitution Act (Betriebsverfassungsgesetz, BetrVG) does not apply to religious communities or their charitable and educational institutions. Under section 118(2) BetrVG, an institution must have an institutional connection with the church. The church must retain sufficient influence to ensure that the institution’s religious activities remain consistent with its principles.
The extent of the church’s organisational and administrative influence, relevant to its right of self-determination under Article 140 of the Basic Law in conjunction with Article 137(3) of the Weimar Constitution, is subject to review by the state courts. In its decision of 5 December 2007, the Seventh Senate held that membership of the Protestant Church’s Diakonisches Werk, whether by the institution itself or its legal entity, does not by itself establish the required minimum degree of church influence.
Such membership is sufficient only if the Diakonisches Werk has the necessary influence over the institution or its legal entity.
The case also concerned proceedings between a works council and an employer about whether the employer’s hospital qualified as a charitable institution of a religious community under section 118(2) BetrVG and was therefore excluded from the Act’s scope. The Diakonisches Werk was not entitled to appeal as an ancillary intervener. In labour court proceedings under section 2a(1), no. 1 of the Labour Courts Act (ArbGG), the participation rules in sections 81 and 83(1), sentence 2, and 83(3) ArbGG exclude the application of the Code of Civil Procedure rules on ancillary intervention.