Pursuant to Sec. 111 sentence 1 BetrVG, in the event of changes
in the operational business of an enterprise which regularly has
more than 20 employees with voting rights, employers must consult
with the works council on a compromise of interests. When
determining this threshold value, temporary agency workers working
at the enterprise for longer than three months must be taken into
consideration even though they do not have an employment
relationship with the hiring enterprise.
This was decided by the Federal Labour Court by judgement of 18
October 2011 (docket no.: 1 AZR 335/10) and therewith confirms the
opinion previously already held in legal literature. If no
consultation takes place, then employees terminated during the
course of the change in business operations have a claim under Sec.
113 para. 3 BetrVG to compensation for the disadvantage incurred by
them. In the factual situation to be decided by the Federal Labour
Court, the employer regularly employed 20 own employees as well as
- since the beginning of November 2008 - one temporary agency
worker. At the end of May 2009 the employer terminated the
employment contracts of 11 industrial workers. It refused to
negotiate with the works council on a compromise of interests. The
claimant, who had been dismissed during the course of this change
in business operations, sued the employer for compensation of the
disadvantage incurred by him. The reduction of jobs represented a
change in business operations that was subject to an obligation to
agree on a compromise of interests, because – taking into
consideration the temporary agency worker - the employer employed
21 employees – and thus more than 20 - with voting
rights. The Federal Labour Court affirmed this.
For this reason, in case of envisaged changes in business
operations in smaller enterprises attention must be paid to the
number and term of employment of the temporary agency workers
employed there, in order to avoid any claims to compensation for
disadvantages suffered or a forbearance claim of the work council
regarding the implementation of the planned measure without the
observation of its co-determination rights.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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