In the proceedings, the works council and the employer disputed the introduction of a whistleblower system. The employer operates retirement and nursing homes and employs more than 480 people. There are other group companies, and a group works council has been formed. The internal reporting office under the HinSchG is located at an external third party. The employer published procedural instructions on the HinSchG on an internal drive, which applied to itself and the other group companies. The works council asserted its right of co-determination pursuant to Section 87 (1) No. 1 BetrVG. The court rejected the application on the grounds that the group works council was responsible and further explained:
The works council has no right of co-determination with regard to the organisational structure of the internal reporting office under the HinSchG. The court refers to the case law of the Federal Labour Court (BAG) regarding the complaints office under the AGG. According to this, the works council has no right of co-determination with regard to where and for which companies the employer establishes the complaints office, nor how it is to be staffed, as this does not affect organisational behaviour. The decisive factor is which body or person is authorised and obliged by the employer to receive reports from employees. However, this does not affect the working relationship and cooperation between employees.
The use of the internal reporting office affects the behaviour of employees, so the works council has a right of co-determination. The decision of the Zwickau Labour Court is based on the case law of the Federal Labour Court (BAG) on the AGG-compliant complaints office. According to this, the design of a standardised reporting procedure is subject to co-determination at the workplace. This is because the reporting procedure controls the behaviour of employees in the workplace by setting requirements for the use of the reporting office in terms of content and form.
It is irrelevant whether the internal reporting office has been set up and is operated within the employer’s workplace or has been outsourced to an external third party.
Conclusion
When using an internal reporting office in accordance with the HinSchG, the works council has a right of co-determination, as this controls the behaviour of employees.
Summary of the key facts
- The use of the internal reporting office in accordance with the HinSchG is subject to co-determination. However, the organisational decision to set it up is not.
