The parties are in dispute as to whether the employer may provide anonymized gross wage payroll to the works council and whether the inspection may be monitored by the employer. In addition, the question was whether provisions of data protection law were opposed to the inspection.
Under Section 80(2) sentence 2 Works Constitution Act, the employer is obligated to grant the works council access to non-anonymized gross payrolls. The court stated as follows:
According to Section 80(2) sentence 2 Works Constitution Act, the works council, if it so requests, is to be granted access at any time to any documentation it may require to perform its duties and in this connection inspection of the payroll showing gross wages and salaries. The aforementioned right of inspection exists to the extent necessary for the works council to perform its tasks. No particular need for monitoring is necessary in this context. The necessary reference to tasks is generally to be affirmed because, in accordance with Section 80(1)(1) Works Constitution Act, the works council must ensure that the laws and collective agreements applicable to the employees are implemented. Although the wording of Section 80(2) sentence 2 half-sentence 2 Works Constitution Act does not specify in detail how the inspection is to be granted specifically, it follows nonetheless from the intent and purpose of the provision that as a matter of principle the employer is not entitled to merely grant access to anonymized documentation. In particular, the works council will only be able to fulfill its supervisory functions if the documents can be assigned to a specific employee. Only by using the names, and where those are the same, the personnel number, can the works council determine specifically which employee receives which remuneration components, whether employees are affected who may be grouped together by the employer, and which remuneration components are received by individual employees or employee groups.
The concerns relating to data protection law cited by the employer in the case at issue are not opposed to the works council’s right to inspect non-anonymous gross remuneration lists. In this respect, Mecklenburg-Western Pomerania State Labor Court refers to a decision of Saxony-Anhalt State Labor Court according to which under Section 26(1) sentence 1 Federal Data Protection Act, new version, data processing for the purpose of exercising the rights of employee representation is expressly permitted. Thus, data processing and data transmission to the respective workforce representatives have been placed on a legally compliant basis. According to the legislator’s intent, the purpose of the new version of Section 26(1) sentence 1 Federal Data Protection Act is specifically also to clarify the works council’s rights, which up to then had mostly been shaped by judicial law. There is no cause arising from the considerations and the wording of the GDPR to make a deviating legal evaluation. Article 6(1)(c) GDPR defines that data processing is lawful if it is necessary for compliance with a legal obligation to which the controller is subject. According to the definition in Article 4(2) GDPR, “processing” means any operation which is performed on personal data, whether or not by automated means.
Finally, in the opinion of the court, the provisions of the Remuneration Transparency Act do not conflict with the works council’s right to inspect non-anonymous gross remuneration lists, either. In this respect, too, the court refers to the December 18, 2018 decision of Saxony-Anhalt State Labor Court (cf. above). The provisions of the Remuneration Transparency Act do not provide for restrictions on the rights and duties of the works council under works constitution law, but rather provide for their extension, which is already apparent from Section 13(6) Remuneration Transparency Act, according to which statutory and other participation rights of the works council governed by collective law remain unaffected by said Act. In addition, it follows from Section 13(3) sentence 1 Remuneration Transparency Act that the employer must not only – as in Section 80(2) sentence 2 half-sentence 2 Works Constitution Act – grant the works council access to the gross remuneration lists, but must also make them available in itemized form. To the extent to which it follows from Section 12(3) Remuneration Transparency Act for Section 13(3) Remuneration Transparency Act that the remuneration lists are to be made anonymous, this refers to the employee’s right to information, but not to the rights to inspection under Section 80(2) sentence 2 half-sentence 2 Works Constitution Act, which may always be requested without anonymization.
In the court’s opinion, in accordance with Section 80(2) sentence 2 half-sentence 2 Works Constitution Act, no persons monitoring or charged with monitoring the works council may be present when works council members are inspecting the gross wage lists. In the trial, the employer had not submitted any indications that could give rise to doubts as to whether the works council would conduct in compliance with the law during the inspection within the scope of trustful collaboration. The simple representation of abstract abuse possibility without reference to a specific case is not suitable to justify the presence of one or more employees designated by the employer to be present during the performance of the inspection by the works council. From a legal point of view, this train of thought of the employer inevitably leads to monitoring that is not permitted by law.