In this particular case, two employers operated various medical facilities in the form of a joint operation. In total, they employed around 1,600 people. A Works Council was elected for the joint operation on August 31, 2020.
Restructuring decided prior to formation of the Works Council
The employer had already decided on restructuring measures for the entire operation before the Works Council was formed. In an e-mail dated July 27, 2020, the management published an organizational diagram illustrating the future structure of the joint operation. It indicated that various work areas would be outsourced and that layoffs were intended.
The General Works Council was not elected until a month later, and then attempted to obtain a temporary injunction in order to enforce its participation rights. The Works Council demanded that the employers refrain from layoffs until further notice, claiming that the Works Council first had to be heard and a reconciliation of interests negotiated.
Safeguarding participation rights
The Works Council lost its case in the Düsseldorf State Labor Court. However, the court also clearly stated that an injunction to safeguard the participation rights as per Section 111 of the Works Constitution Act (BetrVG) was a definite possibility. According to the court, this means of securing the information, consultation and negotiation rights arises from the legally correct interpretation of the corresponding EU directive.
However, the Düsseldorf State Labor Court also stated that the injunction had to be denied in this particular case, as it could not be clearly determined whether the Works Council was truly entitled to consultation rights pursuant to Section 111 of the Works Constitution Act, due to the fact that it was not established until after the completion of the restructuring planning and the beginning of the measures. Therefore, another, stronger reason was required to justify issuing an temporary injunction.