The State Labour Court Berlin-Brandenburg has already decided on this question on April 14, 2021 (reference 15 TaBVGa 401/21) and has based its reasoning on the wording of Article 40 Sec. 2 German Works Council Constitution Act (BetrVG). Accordingly, the employer is obliged to provide sufficient technical equipment enabling works councils to also hold their meetings and consultations virtually.
In the present case the works council demanded an advance on costs from the employer, alternatively the provision of certain information and communication equipment (headsets, webcams, mobile terminals with respective data agreements) in order to hold their works council meetings by video conference. The employer had rented a conference room from a third party in order to enable the eleven members of the works council to hold their meetings. However, in compliance with the corona-related distance regulations, only a maximum of nine persons could meet in this conference room. Besides, some members of the works council were individuals with an increased risk for severe courses of disease in case of an infection with Covid-19. After the German Corona Occupational Health and Safety Ordinance (Corona-ArbSchV) came into force in January 2021, stipulating that employers were obliged to offer home office work, the works council decided that works council meetings should now also be held virtually. This decision was followed by the application for the necessary, specifically defined equipment. As the employer refused this, the works council appealed to the labour court by means of an urgent appeal. Initially the labour court rejected the appeal due to the lack of urgency. After filing a complaint, the Regional Labour Court granted the auxiliary appeal in full.
The State Labour Court rejected the claim for payment of an advance on costs on the grounds that Article 40 Sec. 2 German Works Council Constitution Act (BetrVG) only defines a right to be provided with information and communication equipment, but no entitlement to self-procurement using provided funds. However, there is a right to be provided with the specifically defined information and communication equipment.
According to Article 129 German Works Council Constitution Act (BetrVG), it is the discretionary decision of the works council to hold meetings in person or by video conference in view of the existing pandemic situation. The court did not find any indications that the works council’s discretion was limited to the fact that only face-to-face meetings were to be held. The room rented for the meetings was not of the necessary size to guarantee the required distance for eleven people, which had to be ensured as a matter of priority in the current situation regarding occupational health and safety. In contrast, the provision of masks was of secondary importance. The court particularly took into account the increased health risk to which individual works council members are exposed during face-to-face meetings. As a result, taking these circumstances into account, the court did not consider the decision to hold work council meetings by means of video conferencing to be an error of judgment.
The reasons for an injunction required for an urgent appeal was not denied because the works council has waited 11 months before filing the application after Article 129 German Works Council Constitution Act (BetrVG) came into force. It is up to the works council to organise its work. Hazard situations due to the pandemic may be assessed by the individuals themselves. The works council had rightfully referred to the then applicable Article 2 Sec. 4 German Corona Occupational Health and Safety Ordinance (Corona-ArbSchV), which obliged the employer to offer employees the opportunity to carry out their work from their home, if there were no compelling operational reasons to the contrary.
With this decision the State Labour Court clarifies that the works councils had discretion within the framework of Article 129 German Works Council Constitution Act (BetrVG) in deciding whether meetings should be held in person or (partly) virtually. However, this exercise of discretion always has to be based on the current development of the pandemic and the constantly changing legal framework.
The German Works Council Modernisation Act (Betriebsstättenmodernisierungsgesetz) has now stipulated the permanent possibility of virtual meetings in Article 30 Sec. 2 German Works Council Constitution Act (BetrVG). Therefore, the discretionary decision based on the Corona situation is no longer required. Article 30 Sec. 2 German Works Council Constitution Act (BetrVG) now sets out the requirements for this: namely that (1) the requirements for a virtual participation have been defined in the rules of procedure, ensuring the priority of the face-to-face meeting; (2) at least one quarter of the works council members have not objected; and (3) it is ensured, that third parties cannot gain knowledge of the content of the meeting.
However, for the time being, the employer will have to bear the costs of the technical equipment required by the works council to hold meetings and consultations by video or telephone conference.