Co-determination of the works council in the introduction of desk sharing and clean desk policy

The introduction of desk sharing, like the introduction of a clean desk policy, is not subject to co-determination as a whole. However, a right of co-determination is possible in relation to individual, separable parts of the concepts. This was the subject of a ruling by the Baden-Württemberg State Labor Court on August 6, 2024 (Ref. 21 TaBV 7/24).

Facts

The ruling of the Baden-Württemberg Higher Labor Court (LAG) was based on the following facts:

The parties disputed the establishment of a conciliation committee, the subject matter of which was to be the introduction and implementation of a planning concept. The office space was to be redesigned and redefined; in particular, “desk sharing” and the associated “clean desk” were to be introduced in the employer's company. The employer's new concept called “...spaces” was set out in a presentation that was prepared in September 2023 and the works council was informed in October 2023. Previously, there were already open-plan offices, but the workstations were permanently assigned. In future, these were to be used in the form of desk sharing. There were also partitions between the individual workstations, at least in some cases. The Clean Desk Policy was intended to oblige employees to tidy up their workstations after work and to lock up private items in “lockers”. The office space was also to be divided into the areas of arrival, work, community and exchange. A risk assessment for the new workstations did not yet exist.

The works council applied for the establishment of a conciliation committee together with a chairperson and four assessors. In doing so, the works council asserted its co-determination rights under Section 87 (1) No. 1 of the Works Constitution Act (BetrVG), Section 87 (1) No. 6 BetrVG, Section 87 (1) No. 7 BetrVG and Section 111 BetrVG.

The Labor Court rejected the applications of the works council. The conciliation committee was obviously not competent. It could be ruled out that the works council had a right of co-determination pursuant to Section 87 (1) or Section 111 BetrVG.

Reasons for the decision

The LAG Baden-Württemberg partially upheld the works council's complaint. It ruled that the entire introduction and implementation of the “...spaces” planning concept is not subject to co-determination by the works council. Desk sharing and the clean desk policy are not in themselves subject to co-determination. However, the new space concept contains two sub-areas that could be separated out and for each of which the requirements for setting up a conciliation committee could be met.

The employer's instructions on the placement of employees' personal items, in particular the storage of such items before the start and after the end of work, may affect the order of the company and consequently be subject to co-determination by the works council pursuant to Section 87 (1) no. 1 BetrVG. According to Section 87 Para. 1 No. 1 BetrVG, the works council must have a say in matters relating to the order of the company and the conduct of employees in the company. The orderly conduct within the meaning of Section 87 para. 1 no. 1 BetrVG is affected if a measure taken by the employer is aimed at shaping collective cooperation or ensuring and maintaining the prescribed order of the company. The subject of the right of co-determination is therefore the company's coexistence and the collective cooperation of the employees. In contrast, measures intended to regulate so-called work behavior are not subject to co-determination. If the employer's measure has an impact on both work behavior and organizational behavior, the predominant regulatory purpose is decisive for the classification. This depends on the objective content of the measure and the nature of the operational events to be influenced. Since the new concept in this case also includes regulations on which private items may be brought into the company and how they are to be stored, it cannot immediately be ruled out that the employees' orderly conduct is predominantly affected. Whether this is actually the case must be examined by the conciliation committee.

The second area in which it is not obviously ruled out that the concept is aimed at orderly behavior is the so-called overlapping use. According to the employer's planning, the new division of the office into different areas already includes the possibility of fluid transitions, i.e. that spontaneous meetings can also take place in a “community” area such as the kitchen. This does not exclude the possibility that the company coexistence and collective interaction of the employees is affected, insofar as such employees who visit this break room for recreational purposes may inevitably not only experience a professional break-related discussion, but also regular work of their own department or any other department that may also use the kitchen, and must somehow adapt their break behavior to these other uses. Here, too, it is not immediately apparent that the focus of the space allocation is on controlling work behavior and that this could therefore also affect orderly behavior. Desk sharing and other tidying up of the workplace therefore do not affect orderliness, but work behavior.

Practical advice

This case makes it clear that a separate decision must be made for each individual regulation as to whether or not it is subject to co-determination by the works council. The assessment can be difficult if, as here, for example, both work behavior and orderly conduct are equally affected. For the employer who - for whatever reason - cannot reach an agreement on a regulation with the works council, the clear recommendation is therefore to only adopt regulations for issues that definitely do not trigger a co-determination obligation for the works council. This will not be possible for all issues. However, the present case shows that it can often be possible to implement at least part of the project without the works council.