Employee representation in Germany: Your comprehensive guide

The structure of employee participation in Germany is a complex network of laws and institutions. From the works council to the representative body for disabled employees to the trade union—as an employee, you have various bodies at your disposal that protect your interests and enforce your rights. This guide provides you with a comprehensive overview of the key players and instruments of workplace and corporate co-determination under German labor law, enabling you to understand your position in the company and represent it more effectively.

I. Works constitution: The foundation of co-determination in the workplace

The Works Constitution Act (BetrVG) is the central legal basis for cooperation between employers and employees at the workplace level. It regulates the establishment, organization, and extensive rights of the works council.

The works council – Your strong partner in the workplace

The works council is the most important body for employee representation at the workplace level. Its existence does not depend on the goodwill of the employer, but is a legally enshrined right of the workforce.

• Establishment and election: A works council can generally be established in companies with at least five permanent employees who are eligible to vote (Section 1 BetrVG). All employees of the company who have reached the age of 16 are eligible to vote (active voting rights). Anyone who is eligible to vote and has been with the company for at least six months is eligible for election (passive voting rights). Depending on the size of the company, the election is conducted using the normal or simplified election procedure. Any attempt to obstruct or influence the election is punishable by law (Section 119 BetrVG).
• Organization and management: The size of the works council is determined by the number of employees eligible to vote (Section 9 BetrVG). The committee elects a chairperson and a deputy chairperson from among its members. Decisions are made by resolution at works council meetings. A works committee may be formed to deal with day-to-day business. The works council is obliged to convene regular works meetings to inform the workforce. The costs of the works council's activities, including the necessary materials and literature, are borne by the employer (Section 40 BetrVG).
• Legal status of works council members: Membership of the works council is an unpaid honorary position. Members are protected against ordinary dismissal for the duration of their term of office and for one year thereafter (special protection against dismissal pursuant to Section 15 KSchG). Extraordinary dismissal requires the consent of the works council (Section 103 BetrVG). In addition, there is a strict prohibition on discrimination and preferential treatment. Works council members are entitled to time off from their professional activities to perform their duties and to comprehensive training (§ 37 BetrVG).

Participation rights: From information to enforceable co-determination

The rights of the works council are graded and range from pure information rights to equal decision-making power.

• General tasks: The works council must ensure that the laws, regulations, collective agreements, and works agreements that apply in favor of employees are implemented (Section 80 (1) BetrVG). It must be informed comprehensively and in a timely manner by the employer in order to be able to perform its tasks properly.
• Co-determination in social matters (Section 87 BetrVG): This is the core of co-determination in the workplace. The works council has an enforceable right of co-determination in the areas listed here. If no agreement can be reached with the employer, the conciliation committee can be called upon. Important areas of regulation are:
  • Questions of workplace order and employee conduct.
  • The start and end of the daily working time, including breaks, and the distribution of working time over the individual days of the week.
  • Temporary reduction or extension of the normal working time (e.g., short-time working, overtime).
  • Establishment of general vacation principles and the vacation schedule.
  • Introduction and use of technical equipment designed to monitor the behavior or performance of employees.
  • Regulations on the prevention of accidents at work and occupational diseases.
  • Issues relating to wage structure, in particular the establishment of remuneration principles.
• Co-determination in personnel matters:
  • Individual personnel measures (Section 99 BetrVG): Every hiring, classification, reclassification, and transfer requires the prior consent of the works council. If the works council refuses to give its consent, the employer may not implement the measure.
  • Terminations (Section 102 BetrVG): The works council must be consulted before any termination. A termination without consultation is invalid. Under certain conditions, the works council may object to a regular termination, which gives rise to a claim for continued employment.
• Participation in economic matters:
  • In companies with more than 100 employees, an economic committee must be formed, which must be informed about economic matters.
  • In the event of a change in operations (Section 111 BetrVG), the works council has far-reaching rights. The employer must negotiate a reconciliation of interests and a social plan.

Other works council bodies

• Youth and Trainee Representative Committee (JAV): Represents the interests of young employees under the age of 18 and trainees. It works closely with the works council.
• General Works Council (GBR) and Group Works Council (KBR): If a company has several plants with works councils, a GBR is formed. A KBR can be established for a group of companies.
• European Works Council (EBR): In companies operating throughout the EU, the EBR ensures that employees are informed and consulted at European level.

II. Representation of special employee groups

• Representation of severely disabled employees (SBV): An SBV is elected in companies with at least five severely disabled employees. It promotes the integration of severely disabled people, represents their interests, and monitors compliance with legal requirements.
• Spokesperson committee for senior executives: Senior executives are represented in accordance with the Spokesperson Committee Act (SprAuG). However, its rights are significantly weaker than those of the works council.

III. Corporate co-determination: Influence at the highest level

• Third Participation Act (DrittelbG): In corporations with more than 500 employees, one third of the supervisory board consists of employee representatives.
• Co-determination Act (MitbestG 1976): In companies with generally more than 2,000 employees, the supervisory boards are composed of equal numbers of shareholder and employee representatives.
• The employee representatives on the supervisory board monitor the management and participate in important business decisions.

IV. Right of association and collective bargaining autonomy

The right to form trade unions and employers' associations is guaranteed in Article 9 (3) of the Basic Law (freedom of association).

• Trade unions: Inter-company interest groups representing employees. They negotiate collective agreements with employers' associations or individual employers that set binding minimum standards for working conditions.
• Priority of collective agreements (Section 77 (3) BetrVG): Working conditions that are regulated by collective agreements cannot be the subject of a works agreement unless the collective agreement expressly permits this (opening clause).
• Industrial action: The most effective means of enforcing collective bargaining demands is a strike on the part of the employees and a lockout on the part of the employers.

Conclusion

The world of employee representation is complex and characterized by legal details. Whether it's enforcing co-determination rights, negotiating a social plan, or protecting your individual rights, expert legal advice is essential to secure your position and effectively represent your interests. Contact a specialist at an early stage.