The case in question concerned a research centre operating nationwide with more than 20 locations in Germany. There are works councils at the individual locations, which have formed a joint works council. For the research centre’s employees, mobile working is common practice. However, there were only company agreements for domestic work, i.e. home office.
The joint works council wanted to change this and strived for a uniform regulation on mobile working. But the employer did not really want this. It also denied the works council a co-determination. The general works council demanded that an establishment-level arbitration committee be set up. The Stralsund Labor Court appointed arbitration committee.
The Appeal was Dismissed
The employer’s appeal against this decision remained unsuccessful and was rejected by the Mecklenburg-Vorpommern Regional Labor Court. According to the Regional Labor Court, the works council could appeal to the establishment-level arbitration committee, because it had obviously jurisdiction and a settlement of the disputes by the company partners themselves was no longer possible.
Works Council’s Right of Co-Determination
The Court further stated that mobile working, as the employer understands it, is subject to the rights of co-determination of the works council. If there is no other legal or tariff regulation, the works council has co-determination rights in:
- start and end of the daily working time including breaks; and
- the distribution of the working time on the individual weekdays;
- Amongst other things, there is also a right of co-determination with regard to questions of occupational health and safety; and
- the introduction and utilization of technical devices intended to monitor the employees’ behavior.
Works Council Needs to be Heard
Mobile working was subject to these facts relevant to co-determination. It regularly required the use of one’s own electronic terminal equipment or electronic terminal equipment procured by the company. These devices and the data they produce typically allow the monitoring of employee’s behavior and performance. They can also be used to record working hours, if applicable. With regard to, for example, availability in terms of time, questions of occupational health and safety may also arise, the court further stated. This is why the works council’s rights of co-determination can by no means be clearly excluded from the beginning, according to the Mecklenburg Western Pomerania Regional Labor Court.