An employer and its eleven-member works council disagreed in court on whether the works council is entitled to an advance payment from the employer for expenses or to certain technical equipment in order to be able to hold works council meetings using video conferencing. The option of works council meetings via video or telephone conference was originally introduced into German law as a temporary option, currently due to expire on 30 June 2021, in light of the Coronavirus pandemic. However, as per a new law recently passed, this option will be included in the law permanently.
Under German law, the employer must pay the reasonable expenses of the works council that are required to enable the works council to duly perform its tasks. Such expenses typically involve costs for external counselling or training, but also for necessary equipment.
The works council in the case at hand primarily requested an advance payment in the amount of EUR 2,100 for purchasing software licenses for video conferencing and technical equipment such as headsets, webcams and mobile devices with mobile data use contracts. Alternatively, the works council demanded the supply of two video conferencing licenses, two headsets, two webcams and eleven smartphones on the cost of the employer.
The court ruled in an injunctive relief proceeding that under the applicable Works Constitution Act, the works council is not entitled to an advance payment, as the law does not allow the works council to demand money and purchase necessary equipment itself. However, the court found that the works council in question was entitled to demand the supply of the requested equipment from the employer. According to the law, the employer is obliged to provide the works council with the necessary material resources, information and communication technology for meetings and day-to-day business. What exactly is covered by this is often disputed between employer and works council and subject to change over time. Some decades ago, the question arose whether the works council needs its own internet connection or not – today the answer is: of course! Nowadays, the new option of holding works council meetings via videoconference is grounds for similar discussions. The recent court ruling shows that employers must be prepared to grant modern equipment to the works council, however, they do have some discretion when choosing the brand and exact specifications of such equipment.
Key Action Points for Human Resources and In-house Counsel
The court ruling has high practical significance, as many companies have works council members in geographically widespread locations. The court expressly stated that it is within the sole discretion of the works council how they wish to organise their work – i.e., they may choose to hold video conferences (and to demand the necessary equipment from the employer) even when they are all employed at the same location, or they may choose to hold presence meetings even if this involves costly travel between establishments. With the permanent introduction of video and telephone conferencing as a tool for works councils, employers must be prepared to be confronted with increasing demands for equipment. Employers in such a situation, should review whether the demands are reasonable and coherent, considering the general guidelines established by the recent court ruling.