The works council's training entitlement - training in person or webinar?

Access German version here

According to the German Works Constitution Act (Betriebsverfassungsgesetz, BetrVG), the employer must bear the costs of training courses for the works council that are necessary for its work. According to the Federal Labor Court (Bundesarbeitsgericht), this also applies to accommodation and catering costs for an external in-person seminar if the same training is offered as a webinar with the same content (Judgment of 7 February 2024 – case no. 7 ABR 8/23).

The case at hand

The claimant is the staff representative body (Personalvertretung) established at the employer by collective agreement, whose training entitlement is governed by the BetrVG in accordance with a collective bargaining agreement. In August 2021, several members of the claimant took part in a basic training course on works constitution law in Potsdam for several days. Although the employer paid the seminar fees, it refused to cover the costs of accommodation and catering. It argued that the members of the staff representatives could have taken part in a webinar offered by the same provider lasting several days and with the same content. The lower courts ordered the employer to pay the costs of accommodation and catering. The employer contests this.

Leeway for assessment with regard to the training format

According to the Federal Labor Court, the staff representatives - like the works council - have a certain amount of leeway when deciding which training courses to send their members on. In principle, this also covers the format of the training. This is not contradicted by the fact that a face-to-face seminar regularly incurs higher costs than a webinar in terms of accommodation and catering for the participants.

Lower court questioned the equal impact of webinars

In its decision, the lower court had granted the staff representatives that face-to-face training is significantly more effective than online training in terms of the learning success to be achieved, even if the learning content is identical. The court even referred to its own experiences and stated that it was more difficult to establish communication between the lecturer and training participants online; there were fewer questions and remarks; the participants did not feel that they were part of a training community that worked on the subject together, meaning that the content was less likely to be internalized. It was also not possible to compare the handling of co-determination rights, for example, in different companies. Finally, the lower court assessed the scope for judgment of the members of the staff representatives to the effect that they knew best which form of knowledge transfer would ‘stick’ with them the most.

Practical note

Although the Federal Labor Court’s decision relates to staff representatives, it can be applied to the works council's right to training. This is because the provisions of the BetrVG apply to the staff representatives in this case on the basis of a collective bargaining agreement. The decision follows the established case law of the Federal Labor Court, which grants the works council leeway in the selection of necessary training (Section 37 para. 6 BetrVG). Nevertheless, this is not unlimited. In accordance with the principle of trustful cooperation under the Works Constitution Act (Section 2 para. 1 BetrVG), the works council must endeavor to limit the costs arising from its activities to the necessary minimum. In particular, training is not necessary if the works council can reasonably and more cost-effectively obtain comparable knowledge by other means. This must be assessed individually in practice.