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EMPLOYMENT AND LABOUR LAW 08/2020

LAG Hamburg: Participation of the works council in determining the required personnel

The Regional Labor Court (Landesarbeitsgericht – LAG) of Hamburg granted the works council a right of participation in the determination of the (minimum) number of employees required for the completion of the operational tasks. The LAG held that the corresponding restriction of the entrepreneurial freedom of the employer is to be accepted (LAG Hamburg, decision of 16 July, 2020 – 8 TaBV 8/19).

In the case to be decided by the LAG Hamburg, the employer, who belongs to a clinic group and operates clinics at several locations, and the works council argued about the effectiveness of a partial verdict of an arbitration board. Its partial verdict provided for a certain relationship between the number of beds and medical personnel – which the employer was obliged to observe – and a defined lower limit for full-time employees. The basis for these determinations was a risk assessment.

The LAG Hamburg did not regard the determinations of the personnel minimum strengths in the partial verdict of the arbitration board as discretionary error. The court held that among other things with the fact that the evaluation, which measure is suitable for removal of the determined endangerment – also under inclusion of economic criteria – is subject of the employer’s discretion according to sec 3 para. 1 Work Safety Law (Arbeitsschutzgesetz – ArbSchG). In this regard, the works council has a right of co-determination according to with sec. 87 para. 1 No. 7 Works Constitution Act (Betriebsverfassungsgsetz – BetrVG). By determining of a certain relation of beds and full-time employees the employer’s freedom is unaffected to determine kind and extent of the services offered by the company according to the public law regulations valid for hospitals.

Practical note:

So far the question, whether a measure of the work safety in accordance with sec. 87 para. 1 No. 7 BetrVG in connection with sec. 3 para. 1 ArbSchG can possibly consist in the determination of a minimum staffing level, has not been decided by the Federal Labor Court (Bundesarbeitsgericht – BAG). It therefore remains to be seen whether a participation of the works council in the personnel planning will be maintained via the gateway of the general clause of sec. 3 para. 1 BetrVG. The participation of the works council in personnel planning is in itself limited to a right to information and discussion according to sec. 92 BetrVG.

LAG Nuremberg: Employer representative is not obliged to speak German with the works council

The works council is not entitled to demand that the employer’s representative speaks German if sufficient translation is guaranteed in the company, stated the Regional Labor Court (Landesarbeitsgericht – LAG) Nuremberg in its decision of 18 June , 2020 – 1 TaBV 33/19.

The parties argued over the question of whether the branch manager of an international fashion company must speak German with the employees and the works council. The company did not have a guideline for the company language. The works council considered the fact that the branch manager’s communication was conducted predominantly in English to be a violation of the requirement to use German and thus a violation of its co-determination rights.

The LAG Nuremberg rejected this view. Accordingly, the works council cannot demand that the employer itself or the representative appointed by the employer only communicate with the works council in a way in which the employer representative sent to the meetings or hearings only speaks German. What is decisive is that all statements made by the employer representative are made in an easy-to-understand form to members of the works council and that the statements made by works council members to the employer representative can also be received. This includes that statements of the employer representative – whether in writing, text or verbal form – are made to works council members at least in German if they do not (sufficiently) speak the foreign language.

Practical note:

Especially internationally operating companies will benefit from this decision. Accordingly, employers can also use foreign-language managers as contact persons for the works council, as long as it is ensured that communication between the works council and the employer is mutually understood. The latter is of key importance, as the risk of incorrect translations is borne by the employer. This applies not only to statements made by the employer to the works council, but vice versa.

LAG Düsseldorf: Works council may be dissolved after refusal to work with the personnel manager

The LAG Düsseldorf decided on 23 June, 2020 on the question whether the works council may refuse to cooperate with an employer representative, decision of 23 June, 2020, 14 TaBV 75/19.

The parties disputed the employer’s request to dissolve the 13-member works council. The cause of the conflict was a formal decision of the works council to refuse to work with the personnel manager designated by the employer as the responsible contact person. Thus the work council informed among other things the work and personnel management that the co-operation with the personnel management is terminated and requested the employer to designate a new partner to the works council.

Continuing to enforce the decision, the works council even removed the personnel manager from the distribution list and forwarded notifications and resolutions to other employees. Requests of the employer to the work council to resume the co-operation with the personnel manager remained without success. The works council’s attitude of refusal went so far that the works council did not participate in meetings for the implementation of the personnel planning from an existing reconciliation of interests, if the personnel manager was present.

The situation escalated increasingly in the following, so that the employer finally felt compelled to submit an application to the Solingen Labor Court (Arbeitsgericht Solingen) for dissolution of the works council. Both the Solingen Labor Court and the LAG Düsseldorf confirmed the employer’s action and dissolved the works council.

The LAG Düsseldorf assessed the refusal of the work council to cooperate with the personnel manager as grave dereliction of its statutory duties which is sufficient to fulfil the high requirements in accordance with sec. 23 para. 1 Works Constitution Act (Betriebsverfassungsgsetz – BetrVG). The fact that the work council formally decided the refusal attitude and actually put its decision into action over a longer period of time speaks for this.

The LAG Düsseldorf also clarified that the determination of a contact person is solely incumbent on the employer due to its organizational sovereignty. Even if the personnel manager had possibly not acted in conformity with the works constitution in all points, the works council was not allowed to simply stop the cooperation with the personnel manager by way of self-help. Instead, it should have used the instruments of the Works Constitution Act.

Practical note:

The decision of the LAG Düsseldorf is not yet legally binding at this time. Nevertheless, the decision makes it very clear that there are limits to the actions of the works council. Even if the requirements for grave dereliction of statutory duties by the works council are very high, these are regularly fulfilled in any case when the works council infringes on the organizational sovereignty of the employer and disregards the possibilities of action under Works Constitution Act.

BVerfG: Strikebreaker ban for temporary workers is constitutional

With its decision of 19 June, 2020, the Federal Constitutional Court (Bundesverfassungsgericht – BVerfG) has now confirmed what had long been a source of dissent: the so-called strikebreaker ban according to sec. 11 para. 5 of the Temporary Employment Act (Arbeitnehmerüberlassungsgesetz – AÜG) is constitutional, decision of 19 June, 2020 – 1 BvR 842/17.

In the case on which the decision was based, the complainant, a cinema operator operating nationwide, considered that the strikebreaker ban introduced in the course of the AÜG-reform in 2017 violated her fundamental right to freedom of association. According to the complaint, the regulation is unconstitutional, as it shifts the parity of industrial action at the expense of the employer.

The background to the ban is that employers are increasingly using temporary workers in workplaces affected by strikes in order to maintain – at least partially – the due course of business and actually bypass the strike. Sec. 11 para. 5 AÜG puts a stop to this procedure: Accordingly, hirers are not allowed to employ temporary workers if their company is directly affected by a strike.

The constitutional complaint was unsuccessful: After weighing all the interests involved, the judges in Karlsruhe considered the strikebreaker ban to be constitutional. It is true that this would restrict employers in their decision to use temporary workers to defend themselves against a strike.

Nevertheless, the regulation does not prohibit the general use of temporary workers in the company, but restricts them only to an (in-)indirect use as strike breakers. The legislative goal of also granting temporary workers an appropriate employment relationship and maintaining functioning collective bargaining autonomy therefore outweighs the interests of the employer.

Practical note:

With the decision of the BVerfG it is now confirmed that the restrictions of sec. 11 para. 5 AÜG, which interfere with the entrepreneurial freedom of the employer, are constitutional. Employers should therefore refrain from using temporary workers on strike. A violation of this prohibition can be punished with a fine of up to EUR 500,000.00. However, the intra-group lease of employees remains allowed as long as it is only occasional and the employee was not hired for the purpose of the lease. Thus, the intra-group exchange of personnel therefore remains a permissible instrument for bridging capacity bottlenecks during a strike.

New SARS-COV-2 Occupational Safety Rule comes into force

At the beginning of August, the German Federal Ministry of Labour and Social Affairs (Bundesministerium für Arbeit und Soziales – BMAS) released the new SARS-COV-2 Occupational Health and Safety Rule (hereinafter referred to as the “Occupational Health and Safety Rule”) for publication in the Ministerial Gazette.

The new Occupational Health and Safety Rule essentially contains specifications of the General Occupational Health and Safety Standards developed in April 2020 in connection with the COVID-19 pandemic. We have already reported here on the introduction of the general occupational safety standards.

The aim of the Occupational Health and Safety Rule is to reduce the risk of infection for employees. Key measures remain distance, hygiene and the wearing of a mouth-nose cover. In addition to definitions of terms and specifications of the protective measures already contained in the General Occupational Health and Safety Standards, the Occupational Health and Safety Rule also provides detailed instructions for dealing with employees who are particularly in need of protection and those employees returning to their workplace after having overcome COVID-19 illness.

The Occupational Health and Safety Rule, together with the General Occupational Health and Safety Standards, provides the health authorities with a foundation for assessing whether and to what extent protective measures are being observed.

Practical note:

Existing protection and hygiene concepts should therefore be critically reviewed and, if necessary, adapted to the requirements of the Occupational Health and Safety Rule. In the case of infringements, in addition to liability under the law of obligations towards the injured employees, in individual cases there is even a criminal or regulatory responsibility of the persons acting on behalf of the employer and the employer’s company (sec. 130 Law on Misdemeanours – OWiG).

The occupational health and safety rules can be found here.

Decision of the German federal and state governments to combat the SARS-COV-2 pandemic

On August 27, 2020, the German federal and state governments agreed on a catalogue of joint measures to further combat the SARS-COV-2 pandemic. The following points are particularly worth mentioning:

  • Obligation of travel returnees from risk areas to go directly to their own homes immediately after entry and to isolate themselves there for a period of 14 days after entry (quarantine).
  • As far as possible, travel to risk areas is to be avoided. German federal and state governments strive short term a change of law with the goal that federally a compensation for the loss of income is not granted then if a quarantine becomes necessary due to an avoidable travel into a risk area designated at travel beginning.
  • Introduction of a new regulation on self-isolation (quarantine) as of October 1, 2020 for travel returnees from risk areas, according to which early termination of self-isolation is possible by means of a test from the 5th day after return.

Practical note:

Particularly the planned amendment to the law, according to which compensation in accordance with the Infectious Disease Protection Act (Infektionsschutzgeseetz – IfSG) will not be paid in the event of avoidable travel to a risk area identified at the start of the trip, suggests that employees will not be entitled to continued payment in the event of illness in accordance with the Continued Payment of Remuneration Act (EfZG).

ZL-News
Bereich Arbeitsrecht on

EMPLOYMENT AND LABOUR LAW 08/2020

LAG Hamburg: Participation of the works council in determining the required personnel

The Regional Labor Court (Landesarbeitsgericht – LAG) of Hamburg granted the works council a right of participation in the determination of the (minimum) number of employees required for the completion of the operational tasks. The LAG held that the corresponding restriction of the entrepreneurial freedom of the employer is to be accepted (LAG Hamburg, decision of 16 July, 2020 – 8 TaBV 8/19).

In the case to be decided by the LAG Hamburg, the employer, who belongs to a clinic group and operates clinics at several locations, and the works council argued about the effectiveness of a partial verdict of an arbitration board. Its partial verdict provided for a certain relationship between the number of beds and medical personnel – which the employer was obliged to observe – and a defined lower limit for full-time employees. The basis for these determinations was a risk assessment.

The LAG Hamburg did not regard the determinations of the personnel minimum strengths in the partial verdict of the arbitration board as discretionary error. The court held that among other things with the fact that the evaluation, which measure is suitable for removal of the determined endangerment – also under inclusion of economic criteria – is subject of the employer’s discretion according to sec 3 para. 1 Work Safety Law (Arbeitsschutzgesetz – ArbSchG). In this regard, the works council has a right of co-determination according to with sec. 87 para. 1 No. 7 Works Constitution Act (Betriebsverfassungsgsetz – BetrVG). By determining of a certain relation of beds and full-time employees the employer’s freedom is unaffected to determine kind and extent of the services offered by the company according to the public law regulations valid for hospitals.

Practical note:

So far the question, whether a measure of the work safety in accordance with sec. 87 para. 1 No. 7 BetrVG in connection with sec. 3 para. 1 ArbSchG can possibly consist in the determination of a minimum staffing level, has not been decided by the Federal Labor Court (Bundesarbeitsgericht – BAG). It therefore remains to be seen whether a participation of the works council in the personnel planning will be maintained via the gateway of the general clause of sec. 3 para. 1 BetrVG. The participation of the works council in personnel planning is in itself limited to a right to information and discussion according to sec. 92 BetrVG.

LAG Nuremberg: Employer representative is not obliged to speak German with the works council

The works council is not entitled to demand that the employer’s representative speaks German if sufficient translation is guaranteed in the company, stated the Regional Labor Court (Landesarbeitsgericht – LAG) Nuremberg in its decision of 18 June , 2020 – 1 TaBV 33/19.

The parties argued over the question of whether the branch manager of an international fashion company must speak German with the employees and the works council. The company did not have a guideline for the company language. The works council considered the fact that the branch manager’s communication was conducted predominantly in English to be a violation of the requirement to use German and thus a violation of its co-determination rights.

The LAG Nuremberg rejected this view. Accordingly, the works council cannot demand that the employer itself or the representative appointed by the employer only communicate with the works council in a way in which the employer representative sent to the meetings or hearings only speaks German. What is decisive is that all statements made by the employer representative are made in an easy-to-understand form to members of the works council and that the statements made by works council members to the employer representative can also be received. This includes that statements of the employer representative – whether in writing, text or verbal form – are made to works council members at least in German if they do not (sufficiently) speak the foreign language.

Practical note:

Especially internationally operating companies will benefit from this decision. Accordingly, employers can also use foreign-language managers as contact persons for the works council, as long as it is ensured that communication between the works council and the employer is mutually understood. The latter is of key importance, as the risk of incorrect translations is borne by the employer. This applies not only to statements made by the employer to the works council, but vice versa.

LAG Düsseldorf: Works council may be dissolved after refusal to work with the personnel manager

The LAG Düsseldorf decided on 23 June, 2020 on the question whether the works council may refuse to cooperate with an employer representative, decision of 23 June, 2020, 14 TaBV 75/19.

The parties disputed the employer’s request to dissolve the 13-member works council. The cause of the conflict was a formal decision of the works council to refuse to work with the personnel manager designated by the employer as the responsible contact person. Thus the work council informed among other things the work and personnel management that the co-operation with the personnel management is terminated and requested the employer to designate a new partner to the works council.

Continuing to enforce the decision, the works council even removed the personnel manager from the distribution list and forwarded notifications and resolutions to other employees. Requests of the employer to the work council to resume the co-operation with the personnel manager remained without success. The works council’s attitude of refusal went so far that the works council did not participate in meetings for the implementation of the personnel planning from an existing reconciliation of interests, if the personnel manager was present.

The situation escalated increasingly in the following, so that the employer finally felt compelled to submit an application to the Solingen Labor Court (Arbeitsgericht Solingen) for dissolution of the works council. Both the Solingen Labor Court and the LAG Düsseldorf confirmed the employer’s action and dissolved the works council.

The LAG Düsseldorf assessed the refusal of the work council to cooperate with the personnel manager as grave dereliction of its statutory duties which is sufficient to fulfil the high requirements in accordance with sec. 23 para. 1 Works Constitution Act (Betriebsverfassungsgsetz – BetrVG). The fact that the work council formally decided the refusal attitude and actually put its decision into action over a longer period of time speaks for this.

The LAG Düsseldorf also clarified that the determination of a contact person is solely incumbent on the employer due to its organizational sovereignty. Even if the personnel manager had possibly not acted in conformity with the works constitution in all points, the works council was not allowed to simply stop the cooperation with the personnel manager by way of self-help. Instead, it should have used the instruments of the Works Constitution Act.

Practical note:

The decision of the LAG Düsseldorf is not yet legally binding at this time. Nevertheless, the decision makes it very clear that there are limits to the actions of the works council. Even if the requirements for grave dereliction of statutory duties by the works council are very high, these are regularly fulfilled in any case when the works council infringes on the organizational sovereignty of the employer and disregards the possibilities of action under Works Constitution Act.

BVerfG: Strikebreaker ban for temporary workers is constitutional

With its decision of 19 June, 2020, the Federal Constitutional Court (Bundesverfassungsgericht – BVerfG) has now confirmed what had long been a source of dissent: the so-called strikebreaker ban according to sec. 11 para. 5 of the Temporary Employment Act (Arbeitnehmerüberlassungsgesetz – AÜG) is constitutional, decision of 19 June, 2020 – 1 BvR 842/17.

In the case on which the decision was based, the complainant, a cinema operator operating nationwide, considered that the strikebreaker ban introduced in the course of the AÜG-reform in 2017 violated her fundamental right to freedom of association. According to the complaint, the regulation is unconstitutional, as it shifts the parity of industrial action at the expense of the employer.

The background to the ban is that employers are increasingly using temporary workers in workplaces affected by strikes in order to maintain – at least partially – the due course of business and actually bypass the strike. Sec. 11 para. 5 AÜG puts a stop to this procedure: Accordingly, hirers are not allowed to employ temporary workers if their company is directly affected by a strike.

The constitutional complaint was unsuccessful: After weighing all the interests involved, the judges in Karlsruhe considered the strikebreaker ban to be constitutional. It is true that this would restrict employers in their decision to use temporary workers to defend themselves against a strike.

Nevertheless, the regulation does not prohibit the general use of temporary workers in the company, but restricts them only to an (in-)indirect use as strike breakers. The legislative goal of also granting temporary workers an appropriate employment relationship and maintaining functioning collective bargaining autonomy therefore outweighs the interests of the employer.

Practical note:

With the decision of the BVerfG it is now confirmed that the restrictions of sec. 11 para. 5 AÜG, which interfere with the entrepreneurial freedom of the employer, are constitutional. Employers should therefore refrain from using temporary workers on strike. A violation of this prohibition can be punished with a fine of up to EUR 500,000.00. However, the intra-group lease of employees remains allowed as long as it is only occasional and the employee was not hired for the purpose of the lease. Thus, the intra-group exchange of personnel therefore remains a permissible instrument for bridging capacity bottlenecks during a strike.

New SARS-COV-2 Occupational Safety Rule comes into force

At the beginning of August, the German Federal Ministry of Labour and Social Affairs (Bundesministerium für Arbeit und Soziales – BMAS) released the new SARS-COV-2 Occupational Health and Safety Rule (hereinafter referred to as the “Occupational Health and Safety Rule”) for publication in the Ministerial Gazette.

The new Occupational Health and Safety Rule essentially contains specifications of the General Occupational Health and Safety Standards developed in April 2020 in connection with the COVID-19 pandemic. We have already reported here on the introduction of the general occupational safety standards.

The aim of the Occupational Health and Safety Rule is to reduce the risk of infection for employees. Key measures remain distance, hygiene and the wearing of a mouth-nose cover. In addition to definitions of terms and specifications of the protective measures already contained in the General Occupational Health and Safety Standards, the Occupational Health and Safety Rule also provides detailed instructions for dealing with employees who are particularly in need of protection and those employees returning to their workplace after having overcome COVID-19 illness.

The Occupational Health and Safety Rule, together with the General Occupational Health and Safety Standards, provides the health authorities with a foundation for assessing whether and to what extent protective measures are being observed.

Practical note:

Existing protection and hygiene concepts should therefore be critically reviewed and, if necessary, adapted to the requirements of the Occupational Health and Safety Rule. In the case of infringements, in addition to liability under the law of obligations towards the injured employees, in individual cases there is even a criminal or regulatory responsibility of the persons acting on behalf of the employer and the employer’s company (sec. 130 Law on Misdemeanours – OWiG).

The occupational health and safety rules can be found here.

Decision of the German federal and state governments to combat the SARS-COV-2 pandemic

On August 27, 2020, the German federal and state governments agreed on a catalogue of joint measures to further combat the SARS-COV-2 pandemic. The following points are particularly worth mentioning:

  • Obligation of travel returnees from risk areas to go directly to their own homes immediately after entry and to isolate themselves there for a period of 14 days after entry (quarantine).
  • As far as possible, travel to risk areas is to be avoided. German federal and state governments strive short term a change of law with the goal that federally a compensation for the loss of income is not granted then if a quarantine becomes necessary due to an avoidable travel into a risk area designated at travel beginning.
  • Introduction of a new regulation on self-isolation (quarantine) as of October 1, 2020 for travel returnees from risk areas, according to which early termination of self-isolation is possible by means of a test from the 5th day after return.

Practical note:

Particularly the planned amendment to the law, according to which compensation in accordance with the Infectious Disease Protection Act (Infektionsschutzgeseetz – IfSG) will not be paid in the event of avoidable travel to a risk area identified at the start of the trip, suggests that employees will not be entitled to continued payment in the event of illness in accordance with the Continued Payment of Remuneration Act (EfZG).