The works council can demand of the employer that job openings be advertised within the company prior to being filled – sec. 93 Works Constitution Act (BetrVG).
This is a mandatory co-determination right, however, an obligation by the employer to advertise job openings within the company only exists, if the works council requests the general advertisement of job openings to be filled. This initiative right can only be exercised for future job openings, not for job advertisements that have already been made in the past.
In the decision discussed here, the works council had exercised its initiative right and demanded that the employer advertise vacant positions within the company. When the employer made the entrepreneurial decision, however, to fill concrete positions using temporary workers, while he did indeed advertise these positions within the company. The employer made reference in the job ads to the fact that the hiring process would be handled via an internal hiring portal for temporary workers, and interested applicants were to apply directly with the temporary employment agencies or were requested to contact one of the – expressly mentioned – temporary employment agencies. The works council viewed this as a breach of sec. 93 BetrVG.
The Federal Labor Court decided the case in favor of the employer. The duty to advertise job openings within the company does indeed exist even if the employer intends to fill the positions with temporary workers, but the job opening is not required to enable the option of an in-house application for direct hiring. This follows from the wording of sec. 93 BetrVG, referencing “jobs” instead of “employment relationships”. Moreover, the standard purpose is fulfilled, as it is evident that vacant positions existed in the company, even if the employer did not intend to enter into an employment relationship himself.
It is valid to doubt the usefulness of job advertisements within the company pertaining to jobs that are not intended to be filled with own staff. At the same time, the employer is required to observe the provisions of the Federal Labor Court and advertise such positions within the company. However, the employer is not required to enable an application for direct hiring, nor does the job advertisement need to be designed along these lines.Save as PDF
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