According to § 3 (2) No. 1 of the German Occupational Health and Safety Act, the employer has to develop a suitable organization for the planning and execution of necessary occupational health and safety measures. To make sure that these measures are properly put in place, the employer can assign respective tasks described in detail to selected employees. The German Federal Labor Court decided on March 18, 2014 that if the employer decides to do so, he has to involve the works council pursuant to § 87 (1)  No. 7 of the German Works Constitution Act.

The Works Constitution Act contains a conclusive list of those subjects where the works council has so-called codetermination rights. Pursuant to § 87 (1)  No. 7 of the Works Constitution Act, the works council can demand the establishment of an occupational health and safety organization and negotiations thereon. If the employer refuses, the works council can demand that a conciliation board be called in to rule on the occupational health and safety organization.

The factual situation underlying the judgment was the following:

The employer operates a company that is engaged inter alia in the installation and servicing of elevators. In September 2010, it transferred the occupational health and safety duties for the industrial employees it was responsible for to the masters employed there. At the same time, it instructed the latter to delegate the relevant tasks and responsibilities to the employees with supervisor positions who reported to them. It did not involve the works council in this connection. The latter claimed that it had to codetermine when it came to creating an organization for the purpose of occupational health and safety.

The labor court of appeal shared the works council's view. The employer's miscellaneous appeal on points of law was unsuccessful before the first senate of the German Federal Labor Court.

Under § 87 (1) No. 7 of the Works Constitution Act, the works council has to codetermine in the case of in-plant regulations on the protection of health if the employer has to adopt them due to a public law framework regulation and if room to manoeuvre still remains for it when it comes to structuring. With the letter from September 2010, the employer created an organization– with tasks and responsibilities described in more detail – capable of executing in-plant health protection. The Occupational Health and Safety Act does not prescribe any specific model for this but only determines a framework for the development of an organization orientated to the operational circumstances. The freedom to determine structure or form opened up as a result of this is subject to the codetermination of the works council.

The Federal Labor Court appears to have assumed that the obligation to organize under § 3 (2) No. 1 of the German Occupational Health and Safety Act is a so-called public law framework regulation under occupational health and safety protection. The employer, on the other hand, had argued that the regulation involved a broadly-based general clause, in terms of which codetermination rights existed only under certain circumstances.

The decision will result in the fact that works councils will increasingly be demanding participation in the in-plant organization. For employers, this decision will result in their having to negotiate a further issue with the works council.