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Works council has no co-determination rights regarding a group’s Facebook page

An employer can create a group wide Facebook page without the participation of the group works council (Konzernbetriebsrat) as ruled by the Higher Regional Court Düsseldorf (Landesarbeitsgericht, LAG) on January 12, 2015 (docket number: 9 Ta BV 51/14).

In the case at hand, the group works council demanded that the employer shut down its Facebook page, which was created without the participation of the group works council. On the page, users were able to post comments as well as read other users’ comments on the page’s digital wall.

Due to several users posting negative comments about other staff, the group works council argued in court that it was entitled to co-determination rights regarding the creation of the page, in particular according to sec. 87 para. 1 no. 6 of the German Works Constitution Act (Betriebsverfassungsgesetz, BetrVG). This provision determines that the works council is entitled to a co-determination right regarding the introduction and use of technical devices which can be used to monitor employees’ conduct or performance. In the group works council’s opinion, the page qualified as such a device.

However, the Higher Regional Court Düsseldorf declined any co-determination rights, reversing the decision of the Labour Court Düsseldorf (Arbeitsgericht, ArbG). It determined that a technical device, as stated in the provision, would require the ability to create automated recordings about employees. According to the court, this requirement is not fulfilled by the users’ negative comments on the employer’s Facebook page. Nevertheless, the court expressed the view that the page could be seen as a technical device with regard to those employees who are maintaining the page, as their activities were being automatically recorded regarding date and time of use. However, as ten employees involved in maintenance of the page were all using the same general account to access the page, the court ruled that the employer could not draw any conclusion on an individual employee’s conduct and therefore denied any works council co-determination in this respect as well.