The Higher Labour Court of Hamm (Landesarbeitsgericht Hamm, docket number 13 TaBVGa 8/16) decided on 24 October 2016 that the works council cannot prevent the employer from flying in weekend shifts from its Portuguese operation without the approval of the works council.

In this case – currently only available as a press release – the works council of the company Dura Automotive denied consent for employees of the German operation carrying out additional work at weekends. The automotive supplier has about 880 employees at its operation in Plettenberg. The employees generally work during the week, while additional work on weekends requires the approval of the works council. A former agreement on additional work at weekends had expired. The employer then flew in 300 employees from a Portuguese group subsidiary to take over the weekend work based on a specific works contract (Werkvertag) from 8 October 2016 until the end of the year.

The works council filed a motion on 6 October 2016 with the Labour Court in order to obtain a preliminary injunction preventing the employer’s approach. The Labour Court of Iserlohn (Arbeitsgericht, docket number 2 BVGa 21/16) rejected this on 07 October 2016. On 11 October 2016 the Works Council appealed against this decision. In the meantime, the Portuguese workers had been deployed on Saturday, 8 October 2016, and on the following night shift from Sunday to Monday.

The Higher Labour Court of Hamm rejected the complaint. The works council had no co-determination right to prevent the Portuguese employees from working at the weekend. In particular, its approval was not required. The works council is responsible for the regular operation which includes the use of the employees during the week. The employer’s business decision to use the operational facilities at the weekend using employees of a group subsidiary on the basis of work contracts resulted in a new operation with other employees. For them, the elected works council is not competent. Furthermore there are no indications that the Portuguese workers were or will be integrated into the regular operation in Plettenberg. Last but not least the Higher Labour Court of Hamm stated that there is no circumvention of co-determination rights of the works council. The company acted by the conclusion of the specific works contract within its entrepreneurial freedom.

The taking over of a whole operation using external employees against the resistance of the works council is a novelty in German Labour Law. The ruling continues to define the areas of entrepreneurial freedom and works council co-determination rights.