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Works council decisions: valid or void when the procedure is faulty?

According to the Works Constitution Act (Betriebsverfassungsgesetz, BetrVG) works council meetings are called by the chairman of the works council. The chairman must draw up the agenda und notify works council members of the meetings in good time and with information about the agenda.
Based on previous decisions by the Federal Labour Court (Bundesarbeitsgericht, BAG) it used to be the case that if a decision was taken on a topic not included in the agenda or where no agenda was provided to the members of the works council with the invitation, the decision on that matter was void unless the fault in the process was healed by the presence of all members of the works council and a unanimous decision was taken.

However, the First Senate of the Federal Labour Court changed the position on April 15, 2014 (docket number – 1 ABR 2/13). To fix a faulty invitation in the future, it is necessary and sufficient that (1) all members of the works council have been invited in a timely manner, (2) enough members are present to constitute the quorum (i.e. at least one-half of the members of the works council) and (3) the members of the works council attending the meeting take a unanimous vote to discuss and decide about the respective topic.

Although this decision increases the potential for a valid decision despite faulty procedure, employers should carefully review compliance with the formalities especially in cases where these decisions were taken with a view to observing statutory time limits or to initiate court proceedings. The consequences of not observing the proper procedure can be serious, and it will not always be possible to fix the breach.