The “Act to Promote Works Council Elections and Works Council Activities in a Digital Working World” (Betriebsrätemodernisierungsgesetz – Works Council Modernization Act) came into force on June 18, 2021. The Act is intended to facilitate the activities of works councils and to strengthen the co-determination rights of works councils with regard to the use of artificial intelligence (AI) and the plans for more mobile working in companies.

Promoting works council elections

In order to promote and simplify works council elections, the so-called “simplified electoral procedure”, which previously applied to companies with up to 50 employees, will be extended to companies with up to 100 employees. For companies with 101 to 200 employees the employer and the electoral board may agree on the application of the simplified electoral procedure. For those employees who initiate election meetings or who apply for an appointment to an election committee the protection against dismissal is improved. So-called “pre-field initiators” will therefore, for the first time, receive special protection against dismissal for a limited period of time, as long as they have made a publicly certified declaration that they wish to establish a works council and have undertaken corresponding preparatory actions for this. This protection against dismissal applies for a maximum of three months. Dismissals for operational reasons are excluded from the protection against dismissal, presumably to prevent all employees from becoming involved in election preparations after becoming aware of operational restructuring measures. Extraordinary dismissals should only be possible with the prior consent of the works council or the labour court.

Mobile work and digitalisation

In order to promote remote working and to ensure a uniform and binding protective framework for employees when working from home, section 87 of the German Works Council Constitution Act (Betriebsverfassungsgesetz – BetrVG) will be amended to include a new right of co-determination on the “organisation of mobile work performed by means of information and communication technology”. It forms a catch-all provision for all regulations that can be used to organise remote working; existing co-determination rights continue to apply unchanged. Accident insurance cover for home office work is extended to cover journeys made by employees between home and the childcare facility. In addition, works councils will be allowed to hold meetings by video and telephone conference under their own terms. However, face-to-face meetings take precedence and should remain the normal regime. Employers and works council may execute works agreements electronically. Balance-of-interest agreements and social plans may also be signed electronically.

Artificial intelligence experts

If the use of artificial intelligence (AI) is planned in the company and the works council is to be involved as part of its duties, the works council may consult an expert without delay. This provision is likely to lead to a greater financial burden for companies. In addition, section 95 (2a) BetrVG provides that the current provisions on setting guidelines for personnel selection also apply if these guidelines are drawn up exclusively or with the support of AI.

Data protection – responsibility of the employer

With regard to data protection, under the provision of the new section 79a BetrVG, the employer is now the “responsible party” within the meaning of the data protection regulations. So, if the works council processes personal data in order to fulfil its duties, the employer is responsible for any such processing and so bears the risk of any liability and any potentially high fines. It would have been useful if the legislation clarified the role of the data protection officer in relation to the works council, but it failed to do so.

Conclusion

The Works Council Modernization Act confers some limited improvement in the law relating to the works council constitution. However, it remains to be seen in the next legislative period whether the legislator will move further in adapting to the modern workforce environment.

Recent topics of German employment law

You are referred to our webinar “Arbeitsrecht aktuell” on September 23, 2021, which will cover further topics of German employment law and to our latest employment newsletter “Arbeitsrecht Highlights June 2021”.

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