Works council can demand equipment with tablets or notebooks 

The works council can demand that the employer provide each works council member with a tablet or notebook to enable its members to participate in works council meetings via video conference, provided that the requirements of Section 30 (2) of the Works Constitution Act (BetrVG) are met, according to a decision by the Munich Higher Labor Court (LAG) on December 7, 2023 (2 TaBV 31/23).

Facts of the case

The decision of the LAG Munich is based on the following facts: The employer is a nationwide company with numerous branches in Germany. It refused to provide the works council with three tablets or notebooks for holding works council meetings in the form of video conferences. The works council had requested this in July 2022. The works council had stipulated in its rules of procedure that works council meetings should now be possible via video or telephone conference and that resolutions should be passed in virtual meetings.

The works council had therefore requested the provision of mobile technical equipment for three works council members. The employer rejected this and took the view in the court proceedings that no automatic provision could be derived from Section 30 (2) BetrVG, otherwise the legislator would have enshrined a statutory right for works council members to be provided with appropriate equipment. Even if the requirements of Section 30 (2) BetrVG were met, the provision of IT communication equipment is not always necessary per se. In the present case, a concrete need was neither presented by the works council nor otherwise apparent; the mere existence of Section 30 (2) BetrVG does not establish a concrete operational need.

The Labor Court dismissed the works council's application. The newly inserted Section 30 (2) BetrVG merely constitutes the possibility and regulates the requirements for effective works council resolutions to be passed by video or telephone conference. The question of whether the employer is obliged to provide the technical equipment necessary for holding a video conference, which is to be distinguished from this, is determined in accordance with Section 40 (2) BetrVG.

In response to the appeal lodged against this decision, the LAG amended the decision and obliged the employer to provide the works council with three tablets or notebooks with internet access, a display size of at least 7.9 inches and a camera and loudspeaker/microphone function that are functional for holding video conferences.

Reasons for the decision

The LAG Munich ruled that the works council was entitled to the provision of the requested means of communication pursuant to Sec. 40 (2) BetrVG in conjunction with Section 30 (2) BetrVG.

According to Section 40 (2) BetrVG, the employer must provide the works council with the necessary material resources as well as information and communication technology for the day-to-day management of the works council. According to Section 30 (2) sentence 1 BetrVG, which was created by the Works Council Modernization Act of June 14, 2021, participation in works council meetings by means of video and telephone conferences may only take place if the requirements for this are laid down in the rules of procedure, ensuring the priority of the face-to-face meeting (No. 1), at least one quarter of the members of the works council do not object to this within a period to be determined by the chairman (No. 2) and it is ensured that third parties cannot take note of the content of the meeting (No. 3). The works council's claim against the employer for the provision of the necessary technology presupposes in any case that the works council has adopted rules of procedure within the meaning of Section 30 (2) sentence 1 no. 1 BetrVG.

All requirements of Section 30 (2) sentence 1 no. 1 BetrVG were met in the present case. Contrary to the employer's opinion, the relevant provisions were sufficiently defined. Even the ineffectiveness of individual provisions does not necessarily lead to their overall ineffectiveness.

The employer's view that it could not have been the legislator's intention to equip all works councils nationwide with technical devices also contradicts the explanatory memorandum to Section 30 (2) BetrVG in the Works Council Modernization Act. Rather, the intention is to create an appropriate and permanent regulation for works council work that also makes a significant contribution to the digitalization of works council work. Whether and to what extent the option of video and telephone conferencing is used is also to be left to the sole discretion of the works council. Beyond the provision in Section 30 (3) BetrVG, no further requirements are necessary with regard to the obs of the provision of corresponding IT equipment. Finally, the employer's opinion that the works council activities may not be carried out from the home office is not (or no longer) applicable in light of Section 30 (2) BetrVG.

Note for the practice

As a result, the decision of the Munich Higher Labor Court can be heard and is probably correct in terms of digitalization. At the same time, this means considerably higher costs for companies, in particular for equipping larger committees.

At the same time, the LAG expressly deviates from the principle established by the Federal Labor Court in its decision of July 10, 2013 (7 ABR 22/12) that works council members must be present at the works council's headquarters during their contractual working hours.