Betriebsrätemodernisierungsgesetz has been promulgated

28.06.2021

Employers beware: The announced so-called Betriebsrätemodernisierungsgesetz (Works Council Modernization Act) has been promulgated and thus now comes into force. Changes relate in particular to mobile working, data protection, works council elections and electronic means of communication.

​​​​​​

  1. A significant innovation relates to the offer of mobile working (i.e. home office, remote working and other variations of regular work outside the office). In the future, works councils will have a mandatory right of co-determination, which can be found in Section 87 (1) No. 14 BetrVG. According to this, the works council will in the future have a say in the "design of mobile work performed by means of information and communication technology". According to the legislative material - and analogously to the structure of the other co-determination rights - the rights of the works council are, however, limited solely to the "how" of the design, i.e., for example (i) at which locations mobile work may be performed, (ii) how working time must be recorded, (iii) how the work equipment must be handled, or (iv) which availability times the employee must ensure. 

    The fundamental decision as to whether mobile work should/may be performed at all, on the other hand, remains with the employer - this has been made clear by the legislator in the explanatory memorandum to the law.
     
  2. The new regulations on works council elections are important for the works council elections in the spring of next year. This primarily affects elections in companies with a workforce of up to 100 employees, and in some cases also in companies with a workforce of up to 200 employees. In these areas, the formal requirements for holding a works council election are lowered and simplified for the workforce. In addition, the employer's objection to the electoral list is gaining in importance. Without such an objection, an election challenge can no longer be based on the incorrectness of the electoral list.
     
  3. Also of importance is the new Section 79a BetrVG, which now clarifies that the works council is considered an institutionally dependent part of the employer responsible for data protection compliance when processing personal data. Although the works council must comply with the data protection regulations, it will be important for the employer to ensure this compliance by extending corresponding requirements if the employer does not want to be liable for the works council's failures. The scope of the standardized mutual support obligation has certainly not yet been conclusively clarified. But data protection officers have corresponding monitoring rights and explicit duties of confidentiality vis-à-vis the employer.
     
  4. There are also a number of amendments relating to the involvement of the works council in the use of artificial intelligence (AI), the use of electronic means of communication in works council work and conciliation procedures.

The legislator has opened up some new playing fields for works councils; especially with regard to the innovations on mobile working, relevant inquiries are to be expected in view of the experience gained from the pandemic and the widespread acceptance of mobile working solutions, particularly since employers are no longer obliged to send employees to the home office de facto as of July 1, 2021. Employers must now approach the topic in an even more structured manner and, in addition to aspects of employment law, also pay increasing attention to other relevant issues, such as ensuring IT security as well as compliance with data protection. This applies all the more as, according to the legislator's ideas, the employer may even be liable for the works council's lack of compliance with data protection law. 

Subject fields