Coronavirus has changed many things – including the work of a works council. For protection from the COVID-19 pandemic, a special provision was made in Article 129 of the Works Constitution Act, which allows works council meetings to be held as telephone or video conferences.
In the present case, a general works council wanted to hold its meeting, which also included secret votes on the agenda, as a face-to-face event. The employer, which operates several rehabilitation clinics, tried to prohibit this.
The employer wanted to ban the face-to-face meetings, with reference to the possibility of telephone and video conferences. Especially at cross-regional works council meetings, the risk of coronavirus infection would rise. The risk of spreading the virus in the clinics was not intolerable.
The general works council kept to its plans and prevailed. The applicable German legal regulations on protection from infection were complied with.
Secret Voting not Possible via Video
In the proceedings for interim legal relief, the Berlin-Brandenburg Higher Labor Court decided on August 24, 2020 that the works council meeting is permissible as a face-to-face event and must be tolerated by the employer.
According to the Works Constitution Act, the chairman of the general works council decides the convening and location of the meeting. As secret votes were to be held, the employer could not refer him to the possibility of a telephone or video conference pursuant to Article 129 Works Constitution Act. A secret ballot by telephone or video was not possible, the court stated.
Residual Risk does not Justify a Prohibition
The meeting could take place as a face-to-face event when in compliance with the Coronavirus Contact and Operating Restrictions Order. The Berlin-Brandenburg Higher Labor Court decided that the residual risk does not justify a prohibition of the meeting.
However, the court did not decide that works council meetings may generally be held as face-to-face events. The decision turns on the facts of the individual case. In this case, the face-to-face event was allowed in order for the secret votes to take place.
The Higher Labor Court Berlin-Brandenburg did not give its general consent to the works council’s in-person meetings with this ruling The works council will have to assess whether a face-to-face event is necessary on a case-by-case basis – as in the case of secret votes – or whether technical options such as telephone and video conferences can be used as well. The decision of the Higher Labor Court Berlin-Brandenburg does not constitute a green light for face-to-face events.