No right of the works council to close the company (thanks to Corona)

The SARS-COV 2 pandemic has kept us on tenterhooks for about a year. After these twelve months, we are encountering more and more court decisions dealing with legal issues "around Corona". In a decision dated May 4, 2020 - Ref. 2 BVGa 2/20 - the Hamm Labor Court also had to deal with Corona in preliminary injunction proceedings.

In a retail business, the employer and the works council had agreed on a "short-time work" works agreement, according to which "short-time work zero" (i.e. shop was closed and all employees staying at home) applied in the business. The works agreement explicitly stipulated that the employer was not allowed to call for work without the consent of the works council before the expiry of the works agreement, May 31, 2020.

However, the employer wanted to reopen its shop from April 28, 2020. The works council objected to this and claimed that its co-determination rights had been violated.

The works council was able to successfully assert that the employer was prohibited from deploying personnel without the consent of the works council thanks to the concluded works agreement and the co-determination rights of the works council pursuant to Section 87 (1) No. 2 BetrVG.

Occupational health and safety standards of the BMAS no law/no legal ordinance

But the works council wanted more: it sought a court order to close the shop, at least until a works council agreement had been concluded on a risk assessment of the issues arising from the Corona pandemic and the so-called occupational health and safety standards of the German Federal Ministry of Labor and Social Affairs (BMAS) of April 16, 2020. The works council was unable to prevail with this. Firstly, the Hamm Labor Court (rightly) already denied the existence of a right of co-determination with regard to the aforementioned occupational health and safety standards of the BMAS. These are neither a law nor a legal ordinance; however, the works council only has a right of co-determination with regard to health protection pursuant to Sec. 87 (1) No. 7 BetrVG within the framework of existing laws.

No claim for shop closure

Secondly, however, the Hamm Labor Court also correctly held that the works council would not have had a right to close down the shop even if such a right of co-determination existed. The works council may only work towards the regulation of certain issues, but may not force the closure of a shop until such regulations have been concluded. The works council's co-determination rights are in fact aimed at regulating the containment of specific hazards to employees - after they have been identified. In this respect, there can be no basis for plant/shop closure orders based on health protection.

How relevant this question was and still is in practice last year is shown not least by the press coverage of the dispute between the management of a Wella plant in Hesse (LAG Hessen, decision of June 18, 2020,5 TaBVGa 74/20) and the works council there. There, the question had been raised by the works council whether the employer - with reference to the pandemic containment efforts - was and is entitled to "send" employees to the “home office” without the explicit consent of the works council. The works council, mind you, did not oppose home office employment; it was only concerned with preventing home office work until it had succeeded in concluding a works council agreement on the subject with the employer.

The other decisions discussed here in the newsletter also show the "battle lines" in the plants.

Practice Notes

There are two main practical lessons to be learned from this decision of the Hamm Labor Court: Firstly, when negotiating and concluding works council agreements on short-time work, employers should do their utmost to avoid a stipulation that deprives them of any scope for unilaterally terminating short-time work.

On the other hand, the works council is - of course - entitled to extensive co-determination rights if and when the employer implements the health protection measures (or not). In the past twelve months, case law has made it clear that works councils must be involved if mandatory masks, disinfection requirements, relocated work groups, etc. are to be planned and implemented. In view of the dynamics of the infection situation, the employer is dependent here on a constructive works council - and vice versa.