Abuse Of Co-Determination Rights

Author:Ms Sabrina Hochbrückner
Profession:SKW Schwarz

participate in designing employer projects, but also to considerably delaying and sometimes even preventing them. The Federal Labor Court has now decided how to deal with situations where the works council abuses the law by putting up blockades, thus demonstrating clear limits to purely obstructive works councils.

Federal Labor Court, March 12, 2019, 1 ABR 42/17

The facts of the case

A hospital operator in Lower Saxony drew up monthly work rosters for medical and nursing staff and submitted them to the works council with a request for approval. The works council, however, refused to fully approve the work rosters and rejected them in part for several months in succession. An agreement before the conciliation body was not possible either; the works council - with the exception of a single case - not only refused the employer's efforts to form a conciliation body by mutual agreement, but also further delayed its meeting after an appointment by the labor court, rejecting timely appointment proposals and failing to appoint assessors voluntarily. The works council merely referred to inadequate staffing levels, among other things, but did not raise any specific objections to the work rosters. The works council considered the implementation of a conciliation body to be "not sensible" due to its complexity.

Since this "game" was repeated for several months, the employer, after some time, started to announce the work rosters to its employees despite the partially lacking consent of the works council and to use staff according to the work rosters.

Before the labor court, the works council claimed that its co-determination rights had been infringed and requested among others from the employer to refrain from publishing work rosters without the works council's prior consent.

The decision

In the first instance, the works council's request for the aforementioned injunction was dismissed, while Lower Saxony State Labor Court granted it (and other injunction requests) in response to the works council's appeal. The employer subsequently filed an appeal on points of law.

The Federal Labor Court ruled that the State Labor Court wrongly granted the works council's requests.

The works council would neither be entitled to the general injunction claim under Section 87(I) Works Constitution Act nor the injunction claim under Section 23(III) Works Constitution Act. The employer had repeatedly infringed the works council's right of co-determination under Section...

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