stephanie mayer arbeitsrecht p 1.jpg

General Works Council Meeting Can be Held as a Face-to-face Meeting Despite Corona

The employer may not prohibit a planned face-to-face meeting of the general works council because of increased corona risk. This applies in particular if elections are to be held by secret ballot, which cannot be conducted in the form of a video or telephone conference, as decided by the Berlin-Brandenburg Regional Labor Court (LAG) on August 24, 2020 in summary proceedings (Ref: 12 TaBVGa 1015/20). However, the application for general permission for face-to-face meetings was rejected.

Facts of the case

The employer operates rehabilitation clinics. The company had forbidden presence meetings to the general works council formed at the company and had referred to the holding of the meetings as video or telephone conferences. In justification, the employer referred to risks arising from the cross-regional meeting of the works councils due to the COVID 19 pandemic. These were unacceptable in view of the danger of spreading the disease in the clinics.

The General Works Council objected to the prohibition and adhered to the planned holding of the meeting of the General Works Council as a face-to-face event. In this respect, it pointed out that the legal requirements for infection protection applicable at the venue would be complied with.

The LAG decided that the employer has to accept the planned face-to-face meeting. There is no further appeal against this decision in the proceedings for interim legal protection.

Reasons for the decision

The LAG has decided that the employer must accept the planned face-to-face meeting. According to the Works Constitution Act, the Chairman of the General Works Council decides on the convening of the meeting and thus the place of the meeting. In addition, the General Works Council could not be referred to a possible meeting in the form of a video or telephone conference for the specific upcoming meeting pursuant to Section 129 of the Works Constitution Act (Betriebsverfassungsgesetz, "BetrVG") because there were elections to be held in secret, which is not possible in the context of a video or telephone conference.

According to the Corona Contact and Operating Restrictions Regulation currently in force at the venue, it is permissible to hold the meeting of the General Works Council. The increase in risk remaining despite the expected observance of the rules of conduct did not entitle the employer to prohibit the meeting as a face-to-face event.

Whether something different could apply here for future meetings, especially those without upcoming elections and depending on the development of the occurrence of infection, was left open by the LAG. This would always have to be evaluated in each individual case. For this reason, a motion by the General Works Council to grant general permission for face-to-face meetings was rejected.

Practical advice

This decision shows that even or especially in times of a corona pandemic, general solutions are impossible and that each individual case has to be assessed on its own merits. Even such a special situation does not mean that fundamental provisions of works constitution law such as secret ballots can be overturned. However, the current relevant regulations that have been complied with in the present case must be observed.

1:1. This is how we work together. You decide upon a competent partner; he/she will then remain your point of contact. > more