After a mere ministerial declaration more than three weeks ago, the German Federal Government has now also intro-duced a draft of an act which is intended to put recent and future virtual works council decisions on a legal basis.
What's the problem?
The corona pandemic, which is currently affecting the private and business lives of almost everyone in this country in different ways, poses new major challenges for employers, employees and their representatives. In particular, the work of works councils and personnel councils is being massively hampered by the fact that a considerable number of employees currently work at home and that physical meetings are associated with an increased risk of infection.
This is all the more problematic as there is currently an increasing demand for collective agreements between employers and employee representatives: For example, the introduction of short-time working in companies with a works council is only possible with the works council's consent, but the works council must also be involved when employees are transferred to work at home. While management boards (can) increasingly make important decisions in telephone and video conferences, however, § 33 para. 1 of the German Act of Works Constitution (BetrVG) stipulates that employee representatives must pass their resolutions with a majority of the votes of the members present.
While some voices would like the virtual presence of works council members in a video conference to be sufficient, for others a pragmatic solution – an agreement between the employer and works council not to complain about an invalid resolution - seemed to be the way forward. However, there is a threat of legal problem from another side: If, for example, short-time work was introduced by works agreement and subsequently proves to be invalid, short-time work - with all its consequences - has never been effectively introduced.
So how can the works council's capacity to act be guaranteed in a legally effective manner in times of the corona pandemic?
Legislative solution in horizon!
As a result of "Corona-related" changes to the law in many other legal areas, the Federal Government now finds itself obliged to find a legislative solution for a legally secure participation of works councils.
Telephone and video conferences has been requested for a long time, but they met with resistance from some works councils and unions in particular. In the course of this, Minister of Labour, Hubertus Heil, surprised the public with a ministerial declaration issued on 20 March 2020, in which he took the position - contrary to the wording of the BetrVG - that participation in works council meetings via WebEx meetings or Skype was permissible and that, in the opinion of the Federal Ministry of Labour and Social Affairs (BMAS), the resolutions passed in such a meeting were effective. Meanwhile, such ministerial declaration can neither be an aid to interpretation nor a legal basis.
The fact that the ministerial declaration in question was unable to contribute to the legal clarity or even virtual quorum of works councils was apparently also recognised by the Federal Government and has now agreed to the presentation of a legislative amendment by the CDU/CSU and SPD parliamentary groups (amendment to the Works Constitution Act in connection with the Covid 19 pandemic).
What is new exactly?
To this extent, the BetrVG is to be supplemented by a new § 129 ("Special provisions on the occasion of the Covid 19 pandemic"). Of particular interest is the fact that the amendments are to apply retrospectively from 01 March 1 2020 and would thus legally legitimize virtual resolutions already taken since then. It should be possible for the works council, general works council, group works council, youth and trainee representatives, general youth and trainee representatives and group youth and trainee representatives to participate in meetings and take resolutions via video and telephone conference (para. 1). It must be ensured that third parties cannot take notice of the contents of the meeting. In addition, the participants must confirm their presence to the Chairperson in text form. It is particularly noteworthy that § 129 para. 1, sent. 2 BetrVG, is intended to explicitly prohibit a recording, although such a recording is recognized for protocol purposes at physical works council meetings. In all other respects also employee`s and works council meetings are to be able to be accomplished by means of audio-visual mechanisms (para. 3). This special regulations are limited until 31 December 2020 (para. 4).
What is to consider in practice?
If the legislative amendment is passed in the version of the draft that has been in public so far, virtual work of the works councils is possible – provided certain conditions are met: In order to prevent third parties from taking notice of the content of the meeting, the explanatory notes to the draft law indicate that appropriate technical and organisational measures should be taken, such as encryption of the connection and use of a non-public area for the duration of the meeting. Accordingly, the connected meeting participants could, for example, declare for the record that only persons entitled to participate are present in the room they are using. As soon as non-eligible persons enter the room, they must be informed immediately.
What can be expected in the future?
In addition to a hopefully timely (final) adoption of the planned legislative amendment, it is certainly exciting to see whether - despite the bad prophecies from some works councils and unions - the virtual work of works councils will prove its worth in practical implementation until the end of the year. If this should be the case, as expected, it could also facilitate the work of works councils in the future - outside of a global pandemic - and usefully supplement the "physical" meetings and resolutions that are undoubtedly necessary for important decisions.
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