The Case
A company in the metal goods industry concluded a works agreement on remuneration principles in 2007. In 2020, a new agreement was signed, which provided for salary reductions for certain employees. An employee filed a lawsuit against this reduction, arguing, among other things, that the works council’s resolution at that time was invalid because not all substitute members had been properly summoned. Specifically, a member canceled at short notice on the day of the meeting, without a substitute member being called in.
The Decision
In its decision, the Federal Labor Court clarified that the validity of works council resolutions depends crucially on the proper summoning of all members – including substitute members. As a general rule: if an ordinary member is prevented from attending, a substitute must be summoned. The summons must be made in due time, giving the substitute member sufficient opportunity to review the agenda and prepare.
The central issue in this case was how to interpret “in due time.” According to the Court, this depends on the circumstances of the individual case, particularly the complexity of the topics and the preparation time required. The chairperson of the works council has a certain margin of discretion. However, if the prevention of a member becomes known only on the day of the meeting itself, the chairperson may usually assume that a timely substitution is no longer possible. In such a situation, there is no obligation to summon a substitute at short notice.
As a result, the Federal Labor Court considered the contested resolution of the works council to be valid. The works agreement in question remained effective despite the lack of substitution, since there was no sufficient time for proper preparation. The Court thus overturned the decision of the lower court and confirmed the margin of discretion of works council chairpersons in cases of short-term absences.
Practical Relevance
For company practice, the ruling makes it clear that the formal procedures of works council meetings must be strictly observed. Whenever a member is prevented, a substitute must be summoned to ensure the body can make decisions properly and in full composition. This is particularly relevant when the absence is known in advance. In such situations, it is the duty of the chairperson to act immediately.
At the same time, the Federal Labor Court highlighted the limits: if a member cancels only on the day of the meeting, substitution is generally no longer feasible. In this case, the resolution remains valid, ensuring that the work of the council is not obstructed. For companies, this means they should closely monitor whether works council chairpersons comply with the requirements for summoning and substitution.
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The key takeaways in summary:
- Substitute members must always be summoned in due time – even in cases of short-term absences, if feasible.
- “Due time” depends on the individual case, but the Federal Labor Court grants chairpersons a margin of discretion.
- Missing or faulty summons jeopardize the validity of works council resolutions and subsequent agreements.
- In cases of short-term absences of works council members on the day of the meeting itself, substitution is generally no longer possible.
