The digitalisation of works council work: A distant future or soon to be reality?

Access German version

Digitalisation has long since arrived in the world of work. And yet German Works Constitution Law in particular has been rather cautious about the introduction of digital options in works council work. Now the debate on the digitalisation of works council work is gaining momentum.

ANALOGUE REALITY INSTEAD OF DIGITAL PROGRESS

While it was possible or even necessary for works councils to switch to digital models for their work during the coronavirus pandemic, eg for holding company and works council meetings, analogue works council work dominates again after the end of the pandemic: printouts of application documents on paper, on-site works council meetings and works council elections in person are all part of everyday works council work in Germany and often make this work more difficult for both the works council and the employer's involvement processes. To date, Works Constitution Law has lacked adequate options for responding to and implementing digital change in practice.

MOTION BY THE CDU/CSU PARLIAMENTARY GROUP

In early November, the Committee on Labour and Social Affairs discussed a motion by the CDU/CSU parliamentary group (printed matter 20/4335) calling for more integration of digital options for works council work. Online works council elections are to be introduced as an optional standard procedure and the obligation to be present at works council meetings and consultations before the conciliation committee is to be relaxed. Instead of mandatory physical attendance, the law should in future consider video presence as sufficient. The public hearing on this motion showed that opinions on these demands are quite divided. Even though the experts seem to be largely aware of the need for digital adaptation, there are still voices that do not want to move away from the considerable importance of analogue works council work.

IMPETUS FOR THE DIGITALISATION DEBATE FROM ERFURT: DECISION OF THE FEDERAL LABOUR COURT ON DIGITAL APPLICATION DOCUMENTS

With its recently published decision (case no. 1 ABR 28/22), the Federal Labour Court (BAG) has made an important contribution to the digitalisation of works council work. The court ruled that the provision of application documents to the works council as part of the information procedure (Section 99 (1) Works Constitution Act (BetrVG)) may also take place in digital form. In the underlying proceedings, the works council took the position that it had not been properly informed in accordance with Section 99 (1) BetrVG, as the application documents were not made available to it in paper form, but only in digital form. It therefore refused to give his consent. The BAG affirmed the employer's application for substitution of consent. The employer had fulfilled the requirements of the duty to inform and provide information by granting the works council the right to inspect and read the digital application documents for the duration of the consent procedure, which it could use at any time with the help of laptops. Remarkably, the BAG also commented on the legal anchoring of these digital options in Section 99 (1) BetrVG. This would not be necessary, as Section 99 (1) BetrVG already allows the submission of application documents in digital form. Although the digital form is not expressly mentioned, the legislator had already recognised the need to digitalise works council work and implemented it in the Works Council Modernisation Act (Act of 14 June 2021). The fact that Section 99 BetrVG had not been amended in the process showed that the legislator already considered the standard to be ’sufficient’ with regard to digitalisation.

PRACTICAL NOTE

The BAG's decision is to be welcomed. It provides clear guidance on the conditions under which the employer may inform the works council by means of digital documents in accordance with Section 99 (1) BetrVG: The works council must be granted the right to inspect and read the digital application documents. It must be able to access the digital documents at any time for the duration of the statutory decision period on the application for consent; in the present case, this was guaranteed via laptops.

It is currently not foreseeable whether the legislator will enshrine further digital options in law. In any case, the CDU/CSU motion has not been discussed in Berlin since the hearing in November 2023. It remains to be seen whether the BAG's decision will inject new momentum into the debate.