Under German law, works councils have so-called co-determination rights on certain subjects. This means that an employer must reach an agreement with the works council on these matters, such as rules and policies for employee conduct. Works council co-determination is, however, excluded if there are binding and final statutory provisions dealing with a certain matter. If no agreement can be reached through negotiations between the works council and the employer, a so-called conciliation committee will be established which can either reach an agreement or render a decision. The conciliation committee can be set up by mutual agreement, but it can also be established by a court order upon request by one party.
In a case decided by the Higher Regional Labour Court of Rhineland Palatinate on 20 September 2018, docket number 5 TaBV 13/18, an employer planned to implement a no smoking policy in its operation. It had previously agreed with its Joint Works Council on such a policy for its various operations. Under this existing policy, smoking was permitted indoors in designated areas as well as in specific locations outside. However, following a hazard assessment for one operation, in which it had been advised that smoking must be prohibited indoors, the employer planned to prohibit smoking indoors altogether. The works council objected and argued that the employer must first negotiate and honor the works council’s co-determination rights. As the employer refused negotiations, the works council requested the establishment by a conciliation committee through a court order.
The court granted the request, and in its order covered the following basic principles of works council co-determination rights:
- The primary responsibility for works council co-determination rights is with the local works council. Therefore, absent specific circumstances, the local works council was free to exercise its rights and the works agreement entered into with the Joint Works Council did not provide a final agreement.
- Even if there was a statutory provision that prohibited smoking inside or stipulated such a prohibition, the works council was not barred from exercising co-determination rights. The court held that even in such a case, the employer might still have leeway to provide rules regarding when and where the employees were allowed to smoke outside.
Based on these two key issues, the court established the conciliation committee. The committee will, after its establishment, assess its responsibility for the subject at hand and will then need to find a solution to implement a policy.