Works Constitution Act
The Works Constitution Act (German: Betriebsverfassungsgesetz, pronounced [bəˈtʁiːpsfɛɐ̯fasʊŋsɡəˌzɛt͡s] ⓘ), abbreviated BetrVG, is a German federal law governing the right of employees to form a works council.[1]
History
In the Stinnes–Legien Agreement of 1918, during the collapse of the German Reich following World War One, an agreement between trade union confederation leader Carl Legien and industrialist leader Hugo Stinnes was made that capital and labour would cooperate on an equal foot in all aspects of economic management. This was codified in the Weimar Constitution, §165. To implement this principle, in 1920 the legal predecessor Betriebsrätegesetz (Works Councils Act) mandated consultative bodies for workers in businesses with more than 20 employees. All voting rights and work councils were, however, abolished by Hitler in 1933, and replaced with Nazi controlled management bodies.[2]
After World War Two and the defeat of fascism, work councils were revived by collective agreements promoted under the Control Council Law No 22 (Kontrollratsgesetz No. 22) of the Allied-occupying forces in 1946. This enabled unions to create work councils with binding participation rights and be tasked with enforcing union collective agreements.[2][3]: 72
1952 ratification
Subsequently, the agreements for work councils were codified in the Works Constitution Act, passed on 11 October 1952 in West Germany. Trade unions in Germany wanted much more,[4] including the formalisation of works council members as union representatives, and the expansion of the Coal Co-Determination Act in all industries. The Works Constitution Act relegated 1/3rd of Supervisory Board seats for employee representatives, in contrast with 1/2 for the coal industry.[3]: 74 Instead, the Conservative government emphasized in the law, the legal restrictions on works councils and their independence from trade unions.[3]: 64
1972 major reform
In 1972 the Works Constitution Act was updated and reissued, and largely forms the current basis of the law. It strengthened works council power on the plant level, while subordinating works councils to trade union when it came to collective bargaining.[3]: 65
Subsequent reforms since
The 2001 reform was passed by the SPD-Green cabinet in June 2001. It expands the number of works council members released from work, introduces a simplified election procedure for small workplaces, increased participation rights in environment, anti-racism, retraining, promotion of secure job contracts and more flexibility in setting up alternative Works Council structures that match modern corporate structures. It expands women participation through gender quotas, new provisions for part-time works council members (many who are women) and acknowledges the tension of work and family life balance.[5]
Twenty years later in 2021, the Betriebsrätemodernisierungsgesetz (Works Council Modernization Act) passed, expanding co-determination rights to include artificial intelligence in the workplace, a new framework for online/hybrid meetings of Works Council proceedings, expanded simplified election procedure and lowers the voting age to 16 years old.[6]
Sections of the Act
The BetrVG is divided up into 132 different sections (§1 – 132) which are grouped in the following topics.
General provisions § 1 – 6
The eligibility criteria for forming works council in large and small companies alike, and their relation with trade unions.
Election procedures § 7 – 20
The works council election procedures, including formation of electoral board, voter and candidate eligibility, timelines, gender quota of candidates and contesting elections.
Term of office of the works council § 21 – 25
The term or length of the works council office, alternate members for when a works council member is temporarily or permanently unavailable, termination of membership, both voluntarily and involuntarily.
Conduct of business of the works council § 26 – 41
The internal organization of the works council, including its committees, working groups, responsibilities of the chairperson, structure of internal meetings, decision making mechanisms and the honorary nature of the work. Additionally the youth and trainee delegation, disabled person's delegation and trade unions' rights to participate in works council meetings are outlined.
Works meeting § 42 – 46
Every 3 months, the works council must organise works meetings for all employees in the workplace, to give updates about their works council activities and also the company performance.
Central works council § 47 – 53
When two or more works councils exist at the same company, a Central Works Council must be established.
Combine works council § 54 – 59a
When two or more subsidiaries of the same corporate group have Central Works Council representation, a Combine Works Council can be established.
Youth and trainee delegation § 60 – 73b
After a works council is formed, the youth and trainee delegation should be established. It is a workers' representation of all workers below the age of 18 and in-plant training employees (trainees, apprentices, working students) below the age of 25.
The delegation is able to attend all internal Works Council meetings, and even delay voting decisions if the interests of youth and trainees are not taken into account. In companies with a Central or Combine Works Councils, there can be a corresponding Central or Combine Youth and trainee delegation.
Collaboration by employees and co-determination § 74 – 113
The Works Council, employer and regular employees have a number of mandatory and optional rights to collaborate. They span on a spectrum from information, participation up to full co-determination rights.
The right to monthly meetings with employer, information rights on financial matters (through a finance committee), changes in workplace, participation rights on individual employee transfers/promotions/hiring. The ability to call a conciliation committee in addition to labour court for legal escalations. The strongest co-determination rights include the ability to conclude Works agreements on topics defined in § 87 – 88.
Special regulations for particular types of establishments § 114 – 118
Special provisions regarding formation of works council apply to maritime, aviation and social, charitable, religious organizations.
Offences punishable by imprisonment or fines § 119 – 121
Obstruction of a works council or other bodies mentioned is a criminal offense. Similarly, if any members of works council, trade union leak business secrets about a company, that too is a criminal offense. It is a form of protection against union busting.
Transitional and final provisions § 125 – 132
Amendments to existing sections, and also temporary measures, such as hybrid digital/video meetings during Corona times were applied here.
References
- "Germany - Works Constitution Act". International Labour Organization. Archived from the original on 15 May 2022. Retrieved 21 February 2021.
- McGaughey, Ewan (25 March 2015). "The Codetermination Bargains: The History of German Corporate and Labour Law". Columbia Journal of European Law. Rochester, NY. 23 (1). doi:10.2139/ssrn.2579932. SSRN 2579932.
- Thelen, Kathleen Ann (1991). "The Origins of the Dual System". Union of parts : labor politics in postwar Germany. Cornell University Press. ISBN 978-1-5017-1756-7. OCLC 1037272916.
- "Works Constitution". Eurofound. Retrieved 21 February 2021.
- Behrens, Martin (27 July 2001). "Works Constitution Act reform adopted". Eurofound. Retrieved 28 May 2023.
- Becher, Anja (20 August 2021). "Germany's Works Constitution Act: Important Changes to the Law Effective June 2021". The National Law Review. Archived from the original on 30 November 2021.
External links
- Legal text by BMJV – German, English translation