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The co-determination of the works council

The co-determination of the works council. Principle: Trustful cooperation Monthly conferences. Facts about the works council. Legal basis : Works Council Constitution Act (Betriebsverfassungsgesetz-BetrVG 1972) Formation: in companies with at least 5 employees

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The co-determination of the works council

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  1. The co-determination of the works council Principle: Trustful cooperation Monthly conferences

  2. Facts about the works council • Legal basis: Works Council ConstitutionAct (Betriebsverfassungsgesetz-BetrVG 1972) • Formation: in companieswithat least 5 employees • Term ofoffice: 4 years • Size:depends on thenumberofemployees • Performance oftasks: in particularbyemployeesreleasedfromduties (DOR: 3) • Area ofresponsibiltity:co-determination in operatingmatters

  3. The different types of co-determination Rightofconsulation, informationandnotification Example: installationandre-organisingofworkplaces, changingof operational prodecure, human resourcesplanning Righttobeheard Example: dismissalof an employee Rightofapprovalandrighttorefuseconsent Example: newemploymentor in caseoftransferofemployees Rightof initiative Example: operatingagreements IT area Rightsofparticipation Example: § 87 BetrVG – furtherinformationseelater

  4. Main rights of co-determination of Deutsche Oper am Rhein • True rights of co-determination, § 87 BetrVG • Individual personnel measures, § 99 BetrVG • Termination of employment relationships, § 102 BetrVG However: Tendenzbetrieb § 118 BetrVG (No co- determination in artistic areas)

  5. (1) True co-determination Method: previous agreement to employer´s intended measure; the employer has to involve the works council on its own initiative; the works council has a partial right of initative Basis: catalogue of § 87 I BetrVG, provided there is not a statutory or collective rule and the measure shall apply on a collective basis

  6. Examples from the catalogue, § 87 I BetrVG • Questions concerning the organisation of the company and the behaviour of the employee • Starting and ending of the daily working time as well as breaks and the allocation of working time in respect of individual days of the week • temporary shortening or lengthening of working time • Introduction and application of technical equipment which are intended to observe the employee‘s behaviour and efficiency • Form and administration of social services whose sphere of influence is limited to the company or enterprise

  7. Legal consequences of missing agreement Arbitration committee (Einigungsstelle): The arbitration committee is an in-house arbitration board. It meets, negotiates and decides whenever the work council and the employer cannot find any agreement It is a complexe and an expensive procedure

  8. Legal consequences of missing cooperation The work council has the right to demand the deletion of the unconstitutional measure and may claim for omission in future

  9. Co-determination regarding to individual personnel measures § 99 BetrVG Types of personnel measures: • hiring • transfer • payment

  10. Type ofco-determinationregardingto individual personnelmeasures information, consentandrefusaltoconsent • Employer´sobligationtoinform • priornoticeofthepersonnelmeasure • Presentationoftheapplicationdocuments

  11. Type ofco-determinationregardingto individual personnelmeasures 2. Consent of the works council • The employer has to obtain approval for the measure

  12. 3. Right to refuse the consent Requirements: Compliance of one of the 6 facts of § 99 II BetrVG • Example: right to refuse the consent if a vacancy notice wasn´t published in the company according to § 93 BetrVG (number 5) Observance of a space of time of one week, stating reasons for the refusal in written form; § 99 III BetrVG, otherwise: fiction of consent (Zustimmungsfiktion)

  13. Legal consequences in case of the refusal to consent to individual personnel measures • Employer is not allowed to carry out the measure Exception: in case of urgency (§ 100 BetrVG): preliminary execution is possible • Consent of the work council can be replaced by labour court

  14. co-determinationregardingtotermination Typesofparticipation: therighttobeinformed, tobeheard, tocommentandtoobject The righttobeinformed The employerisobligatedtoinformtheworkcouncilabouttheintendedterminationandhastoprovidereasonsforit

  15. The right to demand a hearing The employer must consult the work council before giving notice of termination • Legal consequences for missing consultation: The termination is invalid

  16. The righttocomment The workcouncilcan • giveitsconsenttothetermination • keepsilent (consequence: fictionofconsent (Zustimmungsfiktion) in a week´s time) • objecttodetermination (§ 102 III BetrVG)

  17. Legal consequences in caseofobjection Atfirstcontinuanceoftheemploymentunderthefollowingrequirements • theemployeedemandsatlabourcourtthedeclarationtheworkrelationshiphas not beenrisovledbytermination

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