Amongst a number of recent judgements on the rights and obligations of works council members, a decision has been pronounced by the Labour Court [Arbeitsgericht, ArbG] of Cottbus dated 15 August 2012 (2 Ca 147/12) clarifying that works council activities during holiday do not give rise to the need to grant the works council member new holiday.

The situation underlying the decision was that, having given notice to the group works council chairman, the works council member attended a works council meeting during his holiday. In the legal action brought by him he demanded that the Defendant grant him a new day of holiday. He argued that works council members have to interrupt their holiday or – as in the case here – are unable to even go on holiday, if they exercise works council activities and notify this in good time to the (group) works council chairman. The complaint was justly dismissed.

The Labour Court decided that works council members are suspended from all official duties during their holiday and are temporarily hindered within the meaning of Sec. 25 German Shop Constitution Act [Betriebsverfassungsgesetz, BetrVG]. They can cancel such temporary hindrance by giving timely notice to the works council chairman; the legal consequence hereof, however, is not the interruption of the granted holiday.

Rather, in such a case the works council member voluntarily sacrifices a day of holiday for the works council activities. He does so on personal grounds and not for operational reasons which interrupt the granted holiday.

The decision can also be transferred to cases in which works council members exercise a works council activity despite having previously applied for and been granted time-off in compensation for overtime. If the works council member conducts works council activities during this time, then this is purely a leisure activity and cannot lead to the new accrual of the claim to time-off.