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Currently, many works council meetings are only held virtually. In France, it was already permitted before the coronavirus pandemic. In Germany, a special provision makes it possible to meet by video conference until the end of 2020 (see report in EWC News 2/2020). Does this mean that Central, Group and European works councils will only be allowed to meet via video conferencing? Does this automatically exclude face-to-face meetings?
On 24 August 2020, the Berlin-Brandenburg Regional Labour Court ruled on this issue. The employer had prohibited the Central works council of a hospital group from convening a meeting with physical attendance during the Coronavirus pandemic. The judges, on the other hand, authorised the meeting to take place if secret ballots were to be held (which is not possible in a video conference) and providing the measures for avoiding infections were respected at the venue. The chairman of the works council can convene meetings and determine the venue, even during the coronavirus pandemic. In principle, exactly the same applies to European works councils, provided that the chair is held by an elected employee representative. Each delegate will then be free to travel or to participate by video link. However, if the chair is held by the employer, as is the case in France, the situation is different.
(report of the judgment below)
In the European works council, videoconferencing is particularly demanding and problematic as it usually requires interpretation. In April 2020, the European trade unions therefore spoke out against negotiations in the form of telephone or video conferences (see report in EWC News 2/2020). There is, as yet, no case law for European works councils on whether central management should be allowed to prohibit a face-to-face meeting or to convert it into a video conference on grounds of the Coronavirus pandemic. In June 2020, the Tuscany Court of Appeal ruled that an Italian company was behaving in an anti-union manner in systematically prohibiting face-to-face meetings of the European works council. However, the ruling relates to events prior to the outbreak of the Coronavirus pandemic (see report in EWC News 2/2020).
Source: Verdi.de, translated with DeepL
Brand new decision of the LAG Berlin-Brandenburg on §129 BetrVG
Online Meeting Video Conference Screen Team Corona
Jagrit Parajuli, pixabay.comJudicial confirmation of the presence meetings of works council bodies also in Corona times
Decision of the Berlin-Brandenburg Higher Labour Court (LAG) on Corona and the special provision under section 129 of the Works Council Constitution Act (BetrVG) on works council meetings
Works council meetings as face-to-face meetings or video or telephone conferences? The employer cannot determine this, at least according to the Berlin-Brandenburg Regional Labour Court in a recent decision.
In summary proceedings, the Berlin-Brandenburg Regional Labour Court (LAG) has now made it clear in a decision of 24 August 2020 (case number 12 TaBVGa 1015/20) that employers may not prohibit face-to-face meetings and refer the bodies to the possibility of holding video and telephone conferences. However, this presupposes that the face-to-face meeting takes place in compliance with hygiene regulations and that a planned secret ballot takes place in the meeting.
The decision was based on the fact that a hospital operator had banned face-to-face meetings of committees with reference to the health risks in connection with the Covid 19 pandemic. The Berlin Labour Court dismissed the urgent application of the central works council on the grounds that health protection had priority.
The Regional Labour Court (LAG) overturned this decision and ruled that the presence meetings were to be accepted. In its reasoning, it pointed out that secret ballots cannot be effectively held in a video or telephone conference. At least in this case constellation, the primacy of the face-to-face meeting is now confirmed.
Unfortunately, the LAG did not make any fundamental statements as to whether this primacy of the face-to-face meeting also applies to all future meetings in which no election takes place. This is to be weighed up and decided on a case-by-case basis.
Works councils are advised to always invite members to attend meetings in compliance with the hygiene regulations if secret ballots are to be held at the meeting.
Infobox: § 129 Works Constitution Act
Special regulations on the occasion of the COVID 19 pandemic
(1) Participation in meetings of the works council, central works council, group works council, youth and trainee representation, central youth and trainee representation and group youth and trainee representation, as well as the passing of resolutions, may take place by means of video and telephone conferences if it is ensured that third parties cannot take note of the content of the meeting. Recording is not permitted. (...)
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2/2020
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