No obvious lack of competence of a conciliation committee with regard to the introduction of electronic recording of working time

Pursuant to Section 87 (1) No. 6 of the German Works Constitution Act (Betriebsverfassungsgesetz, BetrVG), the introduction and use of technical equipment intended to monitor the conduct or performance of employees is subject to co-determination. This includes the use of electronic time recording devices, regardless of whether the employer intends to monitor its employees.

In its decision of 28 November 1989, the Federal Labour Court dealt for the first time with the question of the existence of a right of initiative and rejected such a right in questions of the introduction of technical monitoring (1 ABR 97/88). In the opinion of the Federal Labour Court, an unlimited right of initiative should only apply to the application of technical monitoring, whereas such a right should be completely excluded in relation to the introduction of technical monitoring. This was justified by the protective purpose of Section 87 (1) No. 6 BetrVG. In the opinion of the court, the purpose is to protect the employees from the risks emanating from technical monitoring devices. Accordingly, Section 87 (1) No. 6 BetrVG is a purely defensive right, which is why it would contradict the protective purpose of the provision if the works council could use a right of initiative to demand the introduction of technical monitoring.

These principles underlying the decision of the Federal Labour Court have since been confirmed in part by the lower-instance case law, but to some extent have also been subject to considerable criticism. Most recently, Hamm Higher Labour Court ruled that the works council can demand the establishment of a conciliation committee for the purpose of introducing electronic time recording (decision of 4 June 2019 - 7 TaBV 93/18).

Munich Higher Labour Court has now also decided in the present case that a conciliation committee does not obviously lack competence with regard to the "introduction of electronic recording of working time".

The applicant is the works council for the joint business of the employers who are part of a media group and who together have about 1,000 employees. According to the company agreement of 1997, electronic time recording is only intended to apply to a limited group of employees. There is no recording of working time for employees who do not fall within the scope of the company agreement. The employer side is of the opinion that the employers are not obliged to introduce such a system and that the works council has no right of initiative in this matter under Section 87 (1) No. 6 BetrVG.

Munich Labour Court decided that the conciliation committee did not obviously lack competence because, pursuant to Section 87 (1) No. 7 BetrVG, the works council had a say in matters concerning health and safety. Following the decision of the Court of Justice of the European Union (CJEU) of 14 May 2019 - C-55/18 - the recording of working time is a matter of health and safety, Munich Labour Court held. The complaint lodged against this with Munich Higher Labour Court was unsuccessful. In the reasons for its judgment Munich Higher Labour Court explains that an obvious lack of competence can only be assumed if a right of co-determination of the works council in the matter in dispute is "out of the question fromany conceivable legal point of view".If the works council has not been granted a right of co-determination on a legal question by the highest courts, the conciliation committee is obviously not competent if this case law can be regarded as established and there are no discernable indications of a deviation.

In its reasons, Munich Higher Labour Court refers to the 1989 decision of the Federal Labour Court and further states that insofar as the decision of the Federal Labour Court does not grant the works council a right of initiative to introduce electronic time recording because this right of co-determination was a right of defence, this decision does not represent established case law for the very reason that the composition of the Senate has changed in the meantime. Given the divergent assessment of this issue by the various higher labour courts (see, for example, Berlin-Brandenburg Higher Labour Court, decision of 22 January 2015 - 10 TaBV 1812/14), a right of co-determination pursuant to Section 87 (1) No. 6 BetrVG can no longer be automatically denied for obvious reasons, according to the court.

In addition, Munich Higher Labour Court assesses the introduction of electronic recording of working time from the perspective of health and safety (Section 87 (1) No. 7 BetrVG) and thus picks up on well-known academic opinions which grant the works council a right of co-determination pursuant to Section 87 (1) No. 7 BetrVG when electronic recording of working time is introduced in order to avoid damage to the health of employees or to avoid self-exploitation.