One focus of my work is industrial constitution law. Here I advise employers and works councils.
Works Constitution Law
Co-determination in social affairs
If the employer wants to set up regulations for the order in the enterprise, thus for example a dress code to introduce or use rules for the Internet set up, he must ask the work council after § 87 industrial constitution law (BetrVG). This can co-determine. Without agreement of the work council the employer may not act alone.
If regulations are discussed to the situation of the work time, overtime, short-time work or breaks, the conclusion of a works agreement offers itself frequently. It concerns a written contract, on which works council and employer must agree. The works agreement creates rights and obligations for the employees. It therefore has a binding effect on the employment relationships.
The works council also has a say on leave. If the works council determines that the leave is granted unfairly in the summer, it can demand the conclusion of a works agreement. It can proceed here initiative.
If the employer wants to control the work performance of employees with hardware or software, he cannot do this without the consent of the works council. Because the work council is entitled with the introduction of technical monitoring mechanisms likewise a right of codetermination.
§ 87 BetrVG regulates still many further participation rights of the work council.
If no agreement can be reached on social matters, the conciliation body may be called upon. This is an arbitral tribunal under works constitution law. The court is composed of a neutral chairman and assessors. The parties must agree on the chairman. The assessors determine both parties themselves. The costs are borne by the employer.
Co-determination in personnel matters
If (temporary) employees are hired or transferred, the works council must be involved in accordance with § 99 BetrVG. It can grant or refuse the agreement in these cases. The latter however only if it has for this a reason. This is among other things the case, if other colleagues are disadvantaged. There is also a right of co-determination in the case of transfers. The works council should be able to check whether these are legal.
Hearing in the event of dismissals
If an employee is to be dismissed, the works council must be consulted in accordance with § 102 BetrVG. If the employer waives this, the dismissal is ineffective. The work council has also the possibility of contradicting the notice. For this it requires a reason. If this is present and the works council makes use of its right, the employee concerned can require its further employment. Please read the article by RA Rainer Polzin in AA 12/2005, page 199 et seq.
Co-determination in economic matters
In the event of changes in operations, the works council shall, in accordance with §§ 111 ff. BetrVG, the Works Council has the right to negotiate a reconciliation of interests and a social plan with the employer. The social plan is intended to compensate for the negative economic consequences. It is of great importance for the employees concerned. Please read the article by RA Rainer Polzin, AA 1/2004, page 7 ff.
Resolution of the Works Council
I am happy to advise works councils on the decision to commission me. If an assignment is made, the employer bears my lawyer’s fees. This follows from § 40 BetrVG.