The virtual conciliation body is back! Unfortunately, it is only temporary again, this time until April 7, 2023, adding another chapter to the never-ending legislative history of the virtual conciliation board.

What has happened so far

In the recent past, the Works Constitution Act (Betriebsverfassungsgesetz – BetrVG) already allowed participation in meetings of the conciliation body and the adoption of resolutions by means of video and telephone conferences on several occasions and in the meantime for many months. We had reported on this (blog post "Not virtual..." and blog post "Out for the virtual conciliation board...").

The background to the current legislative action is the still high COVID-19 incidence figures and the uncertain development of the further pandemic.

Requirements for virtual agreement meetings

For participation and decision-making via video and telephone conference, it must be ensured that third parties cannot take note of the content of the meeting. This includes technical measures such as encryption of the connection. Organizational measures such as the use of a non-public room for the duration of the meeting are also required. Recording of the meeting is not permitted. Participants taking part by video and telephone conference shall confirm their presence to the chairman of the conciliation body in text form. To this end, the connected meeting participants can confirm for the record that only persons entitled to participate are present in the room they are using. As soon as persons who are not entitled to participate enter the room, meeting participants must be informed immediately.

Good experience with virtual meetings

In practice, virtual settlement meetings run smoothly in technical and organizational terms after appropriate preparation. Virtual meetings also have other obvious advantages over face-to-face meetings. All participants save time and money, especially due to the fact that they no longer have to travel. From our point of view, there are no longer any valid arguments for again discontinuing the virtual conciliation body in April next year. Virtual conciliation bodies in the fall and winter, but not in the warmer months? That is hardly conceivable and cannot be communicated in the long term.

Negotiations are becoming more and more important

Due to the numerous current challenges and crises alone - including COVID-19, the shortage of skilled workers, and the energy crisis - the relevance of negotiations with the works council will continue to increase. At the same time, the talks are not getting any easier. One good thing is that there are numerous alternatives to the conciliation body. We advocate talks and negotiations in the form of workshops, closed-door meetings or moderated discussions. These are always possible, in presence, hybrid or (purely) virtual. Especially in difficult or seemingly hopeless negotiation and conflict situations, interest-based negotiation is the method of choice. The parties must come to the same table. Of course, conciliation bodies are also possible, and in individual cases they make perfect sense. However, in cases of doubt, an external third party, the chairman of the conciliation body, makes the decision. This does not have to be the case. Business mediation in particular helps. The parties have the solution in their own hands.