Subsequent notification of the Works Council made only after the employee had started working cannot cause the fiction of consent in accordance with Section 99(3) sentence 2 Works Constitution Act to the already completed recruitment.
Federal Labor Court, November 21, 2018 – 7 ABR 16/17
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The employer hired Mr. M as Branch Manager effective October 01, 2015. Since it considered him to be executive staff, it had only informed the Works Council of the recruitment in accordance with Section 105 Works Constitution Act, but had not obtained the Works Council’s consent in accordance with Section 99 Works Constitution Act.
By court order, the Works Council demanded that the hiring be revoked in accordance with Section 101 Works Constitution Act. Following the conciliation hearing, the employer informed the Works Council about the recruitment as a matter of precaution. The Works Council objected on grounds that the subsequent hearing was inadmissible in relation to a step that had already been taken.
In the proceedings, the employer argued that the consent was now deemed to have been given in accordance with Section 99(3) sentence 2 Works Constitution Act., since the Works Council failed to submit grounds for its refusal to give consent in a manner that was to be observed.
The Labor Court granted the Works Council’s request, but the State Labor Court reversed the order. The appeal was successful.
Like the Labor Court, the Federal Labor Court held that the Works Council was entitled to the claim according to Section 101 Works Constitution Act. The employer was obligated to cancel the employee’s recruitment.
Section 101 Works Constitution Act gives the Works Council the opportunity to take action against employers’ infringements of the duty to obtain consent for individual personnel measures in accordance with Section 99 Works Constitution Act. If the necessary consent of the Works Council is missing, the personnel measure is to be rescinded.
In the case at issue, the employer had hired the employee without first obtaining the Works Council’s consent. While the employer can argue in the context of the proceedings that the consent of the Works Council in accordance with Section 99(3) sentence 2 Works Constitution Act is deemed to have been given if the Works Council failed to declare its refusal to consent by giving its reasons, these conditions were not met.
The Federal Labor Court stressed that in accordance with Section 99(1) Works Constitution Act, notification must be given prior to recruitment. According to the purpose of the right of co-determination, it is in principle necessary for the Works Council’s participation to take place at a time at which no final decision had yet been made and/or where it was possible to cancel such decision without problems. The notification that occurred only after start of the actual employment in the company had therefore not been given in due time.
In the absence of proper information, the period for the consent refusal had therefore not even been set in motion.
It was not possible to subsequently request consent because the employer had not refrained from the original measure but maintained the recruitment that was contrary to the works constitution. The employer would therefore have had to cancel the intended recruitment and initiate the co-determination procedure for a new recruitment. As the Federal Labor Court argues, otherwise the employer would be able to forgo the Works Council’s participation, accomplish the personnel measure, wait whether the Works Council acts by initiating the procedure in accordance with Section 101 Works Constitution Act by itself and would only then have to start the participation, without having to cancel the measure. This would contradict the basic conception of co-determination in personnel matters.
The decision makes clear that attention should be paid to the prior notification of the Works Council in accordance with Section 99 Works Constitution Act. In cases of doubt, such as where it is questionable whether an employee is to be considered executive staff, the consent of the Works Council should also be obtained prior to recruitment as a matter of precaution, so as not to run the risk of having to undo the measure later.