Members of a works council may neither be disadvantaged nor privileged because of their activities. This is regulated in Section 78 of the Works Constitution Act. This means that an exempt works council member is not entitled to a company car, even for private use, if they would not be entitled to a company car anyway, i.e. without being a works council member. The Regional Labor Court Berlin-Brandenburg has clarified this.
The plaintiff in the underlying case was voted into the works council just shortly after the beginning of his employment relationship in December 1992. He was, with interruptions, released from his duties as chairman of the works council and member of the central works council until March 2018. After that, he became an exempt works council member for the Berlin sales region, which is spread over several locations.
Employer Demands Company Car Back
Since 2001, the employer had provided the plaintiff with a company car enabling him to exercise his function as a works council member, and also for private use. In April 2018, he demanded that the company car be returned. Reason: Since he was no longer chairman of the works council but an exempt works council member, the preconditions for the provision of a company car under the company car directive were no longer met.
The plaintiff opposed this. In his work as a works council member, his traveling exceeded 50 percent of his working hours. Therefore, the requirements of the Company Car Directive for the provision of a company car were fulfilled.
The Verdict: Provision Violates Prohibition of Beneficiary Treatment
The Regional Labor Court of Berlin-Brandenburg decided that the employer is not obliged to provide the plaintiff with a company car also for private use. Such a provision would violate the prohibition of beneficial treatment under Section 78 Works Constitution Act. The court stated that any advantage in comparison to other employees which is not based on substantive reasons but on the work as a works council, is an unacceptable beneficial treatment.
If the plaintiff were not an exempted member of the works council, he would have worked as a motorcar mechanic or as a team leader. He would not be entitled to a company car for private use in one of these positions. Therefore, the company car was only given to him for his work as a works council member. In this way, he had received a non-cash benefit which he would not have received without his function as works council member. The court held that such an advantage violated the prohibition of beneficial treatment. A claim to a company car for private use existed only if the employer had already given it to the plaintiff before he was exempted from his duties as a works council member, or if he had moved into a position that entitled him to the private use of the company car. According to the court, neither of these is the case here.
If a works council member is not entitled to the private use of a company car due to the prohibition of beneficial treatment, any other agreements with the employer are null and void as well. This means that companies no longer have to adhere to such agreements.