Employee representation in the corona crisis: a new section in the German Works Constitution Act (WCA) (Betriebsverfassungsgesetz – BetrVG) permits electronic works council meetings, even retroactively

Companies are facing daunting challenges due to the corona pandemic, especially if they wish to save and secure jobs. Many important measures such as introducing new rules of conduct (section 87(1) no. 1 WCA), taking health precautions (section 87(1) no. 7 WCA), initiating short-time work (section 87(1) no. 2 WCA), company holidays (section 87(1) no. 5 WCA) and accompanying measures such as the assignment of employees (to work from home, section 99 WCA) require the participation of the works council (if – as is often the case – there are no collective bargaining regulations).

But this participation requires a viable works council. Unfortunately, the ability of works councils to act has been increasingly called into question in many companies due to – justified and important – rules such as contact prohibitions and social distancing to hinder the spread of the novel coronavirus (COVID-19; SARS-CoV-2). This has resulted in intense discussion of options for properly involving a works council without requiring that its members meet in person as is deemed necessary by many (see our article). The common goal is to make it possible to quickly implement measures to protect the company and its employees without violating applicable law. Of course, the government – in the person of German Federal Minister of Labour and Social Affairs Hubertus Heil – wished to help. 

Now, in order to ensure that works councils are able to act, the German legislature has reacted and resolved to introduce a new section 129 WCA, which gives entities such as works councils and their committees the option to pass resolutions by means of video or telephone conferences retroactively to 1 March 2020 and effective until 31 December 2020. The new legal provisions enter into effect when announced in the German Federal Gazette. (This had not occurred by 19 May 2020.)

The new section 129 WCA (“Special regulations in response to the COVID-19 pandemic”) reads as follows:

1. Participation in meetings of a works council, general works council, group works council, representative bodies of young employees and trainees, general representative bodies of young employees and trainees, group representative bodies of young employees and trainees and passing of resolutions can take place by means of video and telephone conferences if it is ensured that it is not possible for third parties to gain any knowledge of the content of the meeting. Section 34(1) sentence 3 applies under the condition that the participants confirm their presence to the chair in text form. The same applies to the committees formed by the bodies mentioned in sentence 1 above.
   
   
2. Sentences 1 and 2 of subsection (1) apply analogously to reconciliation boards and economic committees.
   
   
3. Meetings under sections 42, 53 and 71 can be conducted by means of audio-visual systems if it is ensured that only persons authorised to attend can gain knowledge of the content of the meetings. Recording such meetings is prohibited.

The leeway for action provided by section 129 WCA is provided to other committees in the same way by parallel provisions in the German Act on Representative Committees of Executive Employees (SprAuG), European Works Council Act (EBRG), Act on Employee Participation in a European Company (SEBG) and Act on Employee Participation in a European Cooperative (SCEBG). 

The retroactive effect to 1 March 2020 is intended to cure any (works council) resolutions already passed on the basis of video and telephone conferences, such as works agreements to introduce reduced working hours, and thus bring them into the scope of the law. It is also intended – this time with regard to the future – to avoid to the greatest extent possible the high risk of infection associated with meetings in person while ensuring that employee representative bodies are capable of taking action. The new section 129 WCA is definitely helpful here. However, there are still no easy answers to many questions such as:

• Under what circumstances do meetings in person have priority? 
  
  
• What video and telephone conference tools are permissible?
  
  
• Who is responsible for ensuring that meetings are not recorded?
  
  
• How can data protection challenges be overcome?
  
  
• What errors result in the invalidity of works council resolutions?

Despite these questions – to which we will soon be providing an assessment and recommendation for operative practice – section 129 WCA and the parallel provisions in the other above mentioned laws governing employee participation are definitely a step in the right direction. However, as is often the case with “emergency laws”, not all aspects of this new provision seem to have been thought through to the end. Besides, due to the efforts of legislators to keep interventions due to the novel coronavirus to a minimum, some topics that are important for operative practice have fallen by the wayside. One important example is the rules on electing employee representative bodies.

Nevertheless, the new section 129 WCA offers expedient options for action to be taken in everyday business operations. Both labour and management should also use the time until 31 December 2020 to look into the future, test and establish standards to improve digital collaboration and prepare it for the future. Many people are experiencing the reality that many technical options have become possible within a very short time that had until recently seemed far in the future.