The works council’s part in the application process
At companies with a works council and more than 20 employees entitled to vote, the works council can have a say when recruiting new employees, as is intended by the right to co-determination in individual personnel measures set forth in Section 99 of the Works Constitution Act (BetrVG): “(…) the employer has to notify the works council in advance of any recruitment, (…) and submit to it the appropriate recruitment documents (…)”. This enables the works council to assess whether and what consequences a recruitment will have on the company as a whole.
If the (correctly) informed works council does not agree to a recruitment, the labor court can replace the consent of the works council at the request of the employer.
Application documents in times of digitalization
Where Section 99 of the Works Constitution Act (BetrVG) applies, the employer is required to submit the application documents to the works council when the company intends to recruit a new employee. Historically, the law naturally assumes that the application documents are submitted to the works council in paper form. After all, the regulation dates back to the early 1970s.
But what about the “submission of application documents” in the digital age? A legal dispute broke out in a company over this issue and when all the way to the Federal Labor Court (BAG).
Dispute before the court: The works council wanted paper
In the case that ultimately had to be decided by the Federal Labor Court, the works council demanded that the application documents for a planned new recruitment be submitted in paper form.
All works council members had laptops for their works council work and had access to the relevant sections of the employer’s digital recruiting portal. The company worked with a purely digital application system and paper application documents were also digitized accordingly.
An applicant’s digital application documents were made available to the works council via this internal portal in compliance with the obligation arising from Section 99 of the Works Constitution Act (BetrVG).
However, the works council insisted on receiving the documents in paper form and refused to approve the recruitment.
The employer took legal action against this with the aim of having the works council’s consent replaced in court, arguing that the provision of the documents in digital form satisfied Section 99 (1) sentence 1 of the Works Constitution Act (BetrVG).
Works council required to accept digital documents
The employer was proven right in all three instances: The provision of digital application documents constitutes the “submission of application documents”, even if the law originally referred to the submission of paper documents.
The purpose of the regulation is to provide the works council with the information it needs in order to form an opinion. The form in which this information is provided – whether physical or digital – is irrelevant in terms of the meaning and purpose of the provision.
The fact that this wording was not revised in 2021 in the course of other amendments to the Works Constitution Act does not permit the conclusion that the intention is to continue to insist on paper.
What can we do for you?
Do you have questions about the co-determination of the works council in individual personnel measures? Do not hesitate to contact us!
Summary of the key facts:
- At companies with a works council and more than 20 employees entitled to vote, the works council has a right of co-determination in matters such as recruitment.
- Section 99 (1) of the Works Constitution Act (BetrVG) states that the employer must submit application documents to the works council in the event of possible recruitment.
- Application documents do not have to be submitted in paper form. They can also be provided to the works council in digital form.
