Works Council has no Right of Co-Determination in Union Actions.

 Both employers and works councils are excluded from trade union actions. This is according to a recent decision of the Federal Labor Court (Case No.: 1 ABR 41/18).

Works Council has no Right of Co-Determination in Union Actions.

The German Constitution protects freedom of association and the associated freedom of action for trade union members. This also leads to neither the employer nor the works council having a say in the actions of trade union member employees. The Federal Labor Court ruled on this in its decision of July 28, 2020 (Ref.: 1 ABR 41/18).

The German Constitution grants certain rights to trade unions. For example, information points and leaflet distribution by company employees who are organized in a trade union are protected by constitutional basic rights. The employer is subject to limitations. The employer may not prohibit such actions by employed union members. This prohibition has an impact on the works council to the extent that it cannot exercise its right of co-determination. Consequently, it may not assist the trade unionists, even where there is conflict. This has now been decided by the Federal Labor Court.

The German Constitution grants certain rights to trade unions. For example, information points and leaflet distribution by company employees who are organized in a trade union are protected by constitutional basic rights . The employer is subject to limitations. The employer may not prohibit such actions by employed union members. This prohibition has an impact on the works council to the extent that it cannot exercise its right of co-determination. Consequently, it may not assist the trade unionists, even where there is conflict. This has now been decided by the Federal Labor Court.

Trade Union Information Booth

Such conflict between the employer and employees organized in a trade union had occurred in a hospital clinic. Union members had organized an information stand on the hospital grounds, distributed flyers and collected signatures. In this way, they wanted to draw attention to the shortage of nursing staff in hospitals. The nursing management stepped in and ordered that such actions may not be carried out in the future.

As a result, the works council wanted to support the trade union members, claiming that the nursing management had not been allowed to impose the prohibition unilaterally. The works council felt that its right of co-determination had been infringed.

Neither Regulatory Power nor Right of Co-determination

The Federal Labor Court ruled that neither did the employer have any regulatory power, nor did the works council have any right of co-determination. The action was that of a trade union, which is protected by fundamental rights and which falls outside the rights of the business parties. According to the court, the employer and works council were not authorized to intervene in the collective bargaining activity protected by Art. 9 Par. 3 German Constitution.

Without regulatory power on the part of the employer, the works council also has no right of co-determination. If the employer issues an unjustified prohibition in spite of this, the only recourse in individual cases is to take the matter to a labor court.