Instructions about phone use require prior consultation of Works Council

On 18 November 2015, the Labour Court (Arbeitsgericht, ArbG) Munich (November 18, 2015 – docket-number: 9 BV-Ga 52/15) decided that an employer must consult the works council prior to establishing and enforcing a ban on private mobile phone use.

In this decision the works council (plaintiff) argued that a ban of mobile phones at the work place is a topic that requires participation of the works council and that, without the works council’s consent, the ban was inadmissible. The Labour Court Munich agreed with the plaintiff and argued that any measures taken by an employer regarding the question of rules in the establishment (Ordnung des Betriebes) require prior consultation of the works council, unless they are specifically about the work performance of employees or the employee-employer relationships. The Court found that the performance of the employees was not the focus of the ban on mobile phones and therefore argued that consultation of the works council was required prior to establishing a ban on mobile phones. It therefore prohibited the employer from enforcing the ban until such a time as he had the agreement of the works council and threatened the employer with a coercive fine of up to EUR 10,000.00 for each infraction.

This decision of the Labour Court Munich is surprising and the argument seems a bit far-fetched. Earlier the Higher Labour Court Mainz (Landesarbeitsgericht, LAG, 30 October 2009 – docket number: 6 TaBV 33/09) decided that the use of a mobile phone cannot be compared to listening to the radio while working, which, according to the Federal Labour Court (Bundesarbeitsgericht, BAG) requires consultation of the works council (January 1, 1986 – docket number: 1 ABR 75/83). The Higher Labour Court Mainz held in that decision that refraining from private phone use during working hours was a natural obligation of the employee.

This decision shows that, even though there is some case-law about bans of mobile phones, there is, as yet, no settled case law in Germany. Therefore this is an area that should be watched in the future as a definite direction of the higher courts is yet to be determined.