New article in the Deutscher AnwaltSpiegel by Dr Christian Bloth

The situation: The world of work is virtual – but the works council is not

What has been common practice for years in management, in client meetings, and also in discussions amongst employees – holding virtual meetings and negotiations – has remained a foreign concept in works constitution law. Under the provisions of the Works Constitution Act, meetings of works constitution bodies are not open to the public. Resolutions are ‘passed by a majority of the members present’. This applies, of course, to the works council, the general works council and the group works council, but also to the youth representative body and the conciliation committee.

In particular, the principle of ‘closed-door’ proceedings and the requirement that members be ‘present’ are, according to the prevailing view, seen as obstacles to deliberation and decision-making via telephone or video conference. In such a meeting, it is argued, there is no guarantee that third parties might not gain knowledge of the content or even – unnoticed – be deliberately brought into the proceedings.

Resolutions passed in breach of these principles are deemed ‘null and void’ – which can have far-reaching consequences if, for example, the works council passes resolutions on the introduction of short-time working. Such a flawed resolution, which forms the basis of a works agreement, has no effect on the employees concerned, which can have disastrous consequences in the current situation. It is simply not enough for employers and works councils to believe that, ‘purely for practical reasons’, they can mutually agree to dispense with the ‘formality’ of ‘physical attendance’. It is precisely in the employers’ interest that the formal requirements are observed. Holding a works council meeting by ‘linking up’ various ‘home offices’ is not yet legally possible.

 

Read the full article in the latest online edition of the Deutscher AnwaltSpiegel:

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