Germany Update: The Works Council Modernisation Act is here

In the draft bill of the Federal Ministry of Labour and Social Affairs of 21 December 2020, the law, still referred to as the “Works Council Strengthening Act”, in the version of the government draft of 31 March 2021, passed the Bundestag on 21 May 2021 and the Bundesrat on 28 May 2021 with only a few amendments. It entered into force on 16 June 2021. Against the background of advancing digitalisation, the Works Council Modernisation Act is primarily aimed at making works council work more flexible, strengthening the rights of the works council and promoting mobile work.

Virtual works council meeting and electronic form

Due to the corona crisis, virtual participation in meetings of various interest groups, in particular the works council, was possible for a limited period until 30 June 2021 due to a regulation temporarily inserted into the Works Constitution Act. Thanks to the new regulation by the Works Council Modernisation Act, works councils can now hold meetings for an unlimited period by means of video and telephone conferences. For this purpose, only self-set framework conditions and the priority of the classroom session apply. The new regulation is intended to create a proper and permanent regulation for the work of the works council, which at the same time makes a contribution to the digitization of works council work. According to the new regulation, it is also possible to participate by means of a video and telephone conference for meetings of general and group works councils, youth and trainee representatives as well as speaker committees.

Company agreements, reconciliations of interests and social plans can now be concluded using a qualified electronic signature. The same applies to the decision of a conciliation body.

Mobile work: co-determination and insurance coverage

The Works Council Modernisation Act also provides for an express right of co-determination of the works council in the design of mobile work (“How”). However, certain regulatory issues of mobile work (e.g. working hours and technical equipment) were already subject to co-determination. The decision on the introduction of mobile work (“whether”), on the other hand, remains with the employer – in line with the previous handling of numerous questions of co-determination in social matters. –.

According to the new statutory regulation, insurance cover now exists to the same extent when working in the household (“home office”) or at another location (“mobile working”) as when performing the work on the workplace. The travel of the way to and from a childcare facility at work in the home office is also recorded.

Extension of the simplified procedure for works council elections and protection against dismissal

The scope of the existing simplified election procedure for the election of the works council extends to companies with up to 100 employees entitled to vote. In companies with 101 to 200 employees entitled to vote, the application of the simplified election procedure is subject to a corresponding agreement between the employer and the election board.

In addition, the protection against dismissal of employees in the event of the establishment of a works council is to indicated in such a way that the company is now also covered by preparatory acts for the establishment of a works council, provided that there is a publicly certified declaration by the employee of the intention to set up a works council.

Participation rights in the use of artificial intelligence

If the employer uses artificial intelligence in the company, the law has provided for various new regulations since 16 June 2021. For example, the necessity of consulting an expert is faked when the works council has to assess the introduction or application of artificial intelligence in order to carry out its tasks. The legislature has also expressly extended the right of co-determination on selection guidelines to include the case of the use of artificial intelligence.

Works council: No data protection officer

Since the general Data Protection Regulation (GDPR) came into force, the data protection responsibility of the works council for the processing of personal employee data has been controversial. With the entry into force of the Works Council Modernization Act, it has now been clarified that the employer is responsible within the meaning of the data protection regulations, insofar as the processing by the Works Council is carried out to fulfil the tasks under its responsibility.

Conclusion:

The Works Council Modernisation Act makes a very important contribution to simplifying works council work in the digital age – not least as demonstrated by the corona crisis – and also facilitates flexible working models. However, it would have been desirable if the legislator had gone a step further at certain points, such as with regard to the introduction of digital works council elections. This will probably be recreating at a later date. Certain questions also remain unanswered, such as the definition of the concept of artificial intelligence underworks constitution law. This is where case law will be called upon to interpret this concept.

By Dominik Gallini, MELCHERS, Germany, a Transatlantic Law International Affiliated Firm. 

For further information or for any assistance please contact germanylabor@transatlanticlaw.com

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