By decision dated 23 February 2016 (docket No. 1 ABR 5/14), the BAG decided that an application in court order proceedings to clarify a difference of opinion concerning shop constitution law is impermissible if the employer’s and employee’s sides have initially undertaken to conduct internal conciliation proceedings to resolve disputes.

In the appeal proceedings before the BAG the works council making the application and the employer disagreed over the implementation of a shop agreement on working hours. Sec. 10 of the shop agreement envisaged an internal dispute mechanism in the event of differences of opinion over the application and interpretation of shop agreements. The works council, however, had tried to directly judicially resolve the difference of opinion on the interpretation of the shop agreement without a prior attempt at internal conciliation. 

The BAG deemed the works council’s application impermissible. The agreement of a primary internal dispute resolution mechanism was valid. In particular, this was not an impermissible arbitration agreement within the meaning of Sec. 4 German Employment Courts Act [Arbeitsgerichtsgesetz, ArbGG]. The employer’s and employees’ sides were therewith merely making use of their possibility under Sec. 76 Subsec. 6 BetrVG to have their differences of opinion primarily addressed in internal dispute resolution proceedings. This offers the possibility of clarifying disputed issues quickly. To the extent the conciliation board first has to be convoked at the internal level and the dispute is over regulatory matters, the decision reached is subsequently only reviewable by the courts to a limited degree. In litigation, in contrast, the internal dispute resolution mechanism merely lead to an additional instance, as in this case a decision reached by the conciliation board is fully reviewable by the court. The two parties must therefore decide in the individual case whether an obligatory internal dispute resolution mechanism, e.g. within the framework of a shop agreement, should be agreed. Should they decide in favour of this, it also has to be observed.