German Act to modernise works councils: Update on new law & overview about the most relevant changes
Written By
On 18 June 2021 the German Act to modernise works councils (Betriebsrätemodernisierungsgesetz, BRMG) came into force and provides for essential changes, especially with regard to daily works council’ s work.
The new law not only amends relevant sections within the German Works Constitution Act (Betriebsverfassungsgesetz, BetrVG), but also those of the German Dismissal Protection Act (Kündigungsschutzgesetz, KSchG) and the German Social Code IV (Sozialgesetzbuch IV, SGB IV). The law is primarily intended to facilitate the establishment of works councils and to extend the rights of existing works councils. Some of the amendments in law have considerable practical relevance, not only for the daily work of works councils, but also for the members’ position and special protection rights against dismissal.
Thus, the question comes up: What are the changes with regard to…
…works council’s election?
The minimum age for the eligibility to vote has been reduced: Employees are entitled to vote if they have reached the age of 16. However, eligibility to be elected (passive right to vote) still requires the employee to be at least 18 years old.
For business establishments with up to 100 - instead of 50 - employees, the so-called simplified election procedure is mandatory for works council elections. For business establishments with 101 to 200 employees, it is up to the employer and the works council to mutually agree on the simplified election procedure.
Less supporting signatures required, sec. 14 par. 4 BetrVG
In business establishments with up to 20 employees, no signatures to support an election proposal are required at all. In business establishments with 21 to 100 employees, only two signatures are still necessary, whereby no written form is required for proposals made during the election meeting, so that in this case support of an election proposal can also be signalled by a show of hands.
Limited contestability, sec. 19 Abs. 3 BetrVG
… works council meetings?
Virtual works council meetings, sec. 30, 33 f. BetrVGIn principle face-to-face meetings shall be conducted. Only in exceptional cases can works council meetings be held by video or telephone conference if (i) the framework conditions are regulated within the works council’s rules of procedure, (ii) a quarter of the members of the works council have not previously objected (informally) and (iii) it is ensured that third parties cannot take note of the content of the meeting. Recording the meeting is not permitted.
Note: Without corresponding regulations in the rules of procedure, virtual works council meetings may not be conducted at all!
The invitation must indicate that a virtual meeting is intended and how it will be organised. A reasonable deadline for works council members to object shall be set. Works council members who participate in the adoption of resolutions by means of video and telephone conferences shall be deemed to be present in person. Attendance at meetings must be confirmed in text form to the chairperson to be later attached to the minutes of the meeting.
Note: The necessity of physical participation in works council meetings cannot be denied by the employer only because of the additional possibility of participation via video and telephone conference, sec. 30 par. 3 BetrVG.
…participation and co-determination rights
Use of artificial intelligence (AI), sec. 80 par. 3, 90 par. 1 no. 3, 95 par. 2a BetrVGAI has found its way directly into BetrVG in several places. For example, the "necessity" of consulting an expert on questions relating to the introduction and use of KI is assumed.
In addition, the corresponding information rights have been extended. If the employer intends to use AI in the business establishment with regard to work procedures and processes, he must inform the works council comprehensively and at an early stage by providing all necessary documents.
If AI is used in connection with selection guidelines, works council has to be involved as well.
Co-determination in case of mobile work, sec. 87 par. 1 no. 14 BetrVG
If mobile work shall be implemented, the works council has an explicit written right of co-determination on the concrete handling ("how"). This covers, for example, the scope, the duration as well as the place of mobile work, but also regulations on presence at the workplace, on accessibility, on the use of work equipment and on safety aspects. However, the decision on the introduction of mobile work as such ("whether") remains solely with the employer.
Involvement of the conciliation board on vocational training issues, sec. 96 par. 1a BetrVG
Already in the past, the employer had to consult with the works council on vocational training issues. The works council's general right of initiative has been extended to the effect that both, the employer and the works council, can call the conciliation board if no mutual agreement can be reached on issues of vocational training.
Note: There is still no obligation to reach an agreement.
…special protection against dismissal?
Extension of special protection rights, sec. 15 par. 3a, 3b KSchGThe special protection against dismissal for election initiators has been extended. Now the first six - instead of previously three - of the employees, inviting to the election, are covered.
In future, even preparatory acts for the election can lead to special protection rights if the employee concerned has had his intention to establish a works council publicly certified. In this case, ordinary dismissals based on personal or behavioural reasons are excluded for a period of up to three months.
Note: This means that going to a notary and carrying out preparatory acts can already justify special protection against dismissal.
Substitution of works councils consent in case of termination for cause, sec. 103 par. 2a BetrVG
… and what else?
Qualified electronic signatures, sec. 76 par. 3, 77 par. 2 BetrVGSimplified formal requirements have been standardised with regard to various procedures. Works agreements, guidelines, reconciliations of interests and social plans can be effectively signed with a qualified electronic signature, which is also sufficient for the decision of the conciliation board.
It was clarified that the employer is responsible for data protection, even if the works council processes employees' personal data in the performance of its duties. Nevertheless, the works council must support the employer in fulfilling its obligations under data protection law (e.g. with regard to the creation of a list of processing activities or with regard to information to be provided) and independently ensure data security within its own area of responsibility. The employer shall provide the works council with the necessary material resources for this purpose.
Accident insurance, sec. 8 par.1 s. 3, par. 2 no. 2a SGB VII
The coverage of the statutory accident insurance has been extended. When carrying out professional activities in the employee's household, employees are protected on a comparable level as in the workplace, i.e. ways to the kitchen or toilet are also insured. In addition, journeys to the childcare centre are also covered.
