Digitization does not stop at the gates of works council work, either. Employers and employee representatives are increasingly communicating by email instead of in conventional paper form. Works council members are disseminating information to the workforce electronically or by using digital “bulletin boards” on the intranet. But where does the Works Constitution Act set limits for virtual cooperation with the works council?
This issue is currently being discussed in particular with respect to the admissibility of holding works council meetings via video conferencing. This can represent a considerable relief for works council members, for example when it comes to having participants with different working time models get together at the same time or enabling members working in home offices or at a branch office of the company to participate in meetings without having to travel. Employers may also be interested in video conferencing instead of traditional face-to-face meetings. Particularly for large, supra-local bodies such as general works councils, a considerable amount of travel costs can be saved. In addition, it is easier to hold short-term works council meetings in urgent cases. But is this pragmatic approach compliant with the applicable statutory provisions?
The Works Constitution Act stipulates that resolutions of the works council are to be taken “in meetings” in the presence of at least half of its members. In accordance with express statutory provisions, the meetings of the works council must be held in private. It continues to be prevailing opinion that a physical presence of the works council members is necessary for the effective adoption of resolutions. In addition, the principle that works council meetings are not to be held in public would also be opposed to videoconferencing, since the risk that unauthorized third parties – unnoticed by the majority of the members – may participate in the meeting as well would significantly increase. At least the latter argument is not convincing, however. In times in which usually every member of the works council has a smartphone, there is also a risk during face-to-face meetings that contents of the meeting will be secretly recorded and/or transmitted directly to third parties outside the meeting room.
Increasingly, there are calls for a more up-to-date interpretation of the statutory provisions on meetings and the adoption of resolutions by the works council. With a view to the meaning and purpose of the provisions, it should be sufficient for the members to be able to communicate verbally while directly viewing each other. This is guaranteed in a video conference in contrast to a telephone conference or a written resolution by circular procedure – which is generally considered inadmissible.
It would be desirable for there to be a clear legislative provision expressly permitting works council meetings to be held by video conference. In individual cases, the mandatory attendance entails considerable additional costs (such as due to travel activities) and no longer seems appropriate. In other laws, the holding of meetings by means of video conferences was expressly declared permissible. Supervisory board meetings, for example, may also be held as video conferences in accordance with the German Stock Corporation Act. The Act on European Works Councils explicitly permits virtual participation in works council meetings for maritime works councils.
As long as there are no clear statutory provisions in the Works Constitution Act, there is a risk that resolutions adopted by works councils as part of video conferences will be ineffective. In any event, the employer will not be able to invoke the protection of legitimate expectations if it was aware or had to be aware that the resolution was not adopted during a face-to-face meeting.
Under the current legal situation, the adoption of resolutions by the works council during video conferences remains subject to risk. Depending on the interests involved, this risk may also be relevant for the employer, for example when it comes to concluding works agreements or agreeing to the dismissal of works council members. Employers are well advised to avoid this risk, taking care to ensure that the works council adopts resolutions in face-to-face meetings. In the case of less serious issues such as the short-term arrangement of overtime or the hiring of temporary staff, however, it seems justifiable for pragmatic reasons to accept resolutions adopted in a video conference with the consent of all parties involved.