The works council has a right of co-determination in using the staff canteen, including the terrace, as long as it is equipped with tables and chairs.
Düsseldorf State Labor Court, December 12, 2018 – 12 TaBV 37/18
The facts
The parties are in dispute as to whether the employer must refrain from locking the door between the staff canteen and the terrace without the works council's prior consent. The employer organizes (the judgement describes the facts in the past tense, author's note) cultural events such as operas, ballet performances, and concerts. The employer's company includes the B Theater with more than 500 employees. It operates a staff canteen located on the ground floor.
A door leads from the canteen to an outside terrace of about 50 to 70 square meters. For years, the terrace had been equipped with tables and chairs by the employer from about March/April to October/November – with beginning and end variable, depending on the weather conditions – giving employees the opportunity to sit and eat there.
At the end of February 2018, the employer's technical manager ordered the terrace door to be locked. The works council objected to the decision because in its opinion the issue of whether or not the terrace door was to be locked was subject to co-determination, being that the terrace was a social facility. As a result of the violation and denial of this right of co-determination by the employer, the works council held that it was entitled to an injunction.
The decision
The State Labor Court largely agreed with the works council's motion.
Employers are generally free to decide on the use of company premises without co-determination. Within the scope of this freedom of decision, the employer is able to decide whether or not to make company premises available at all for social facilities, such as a canteen.
Once the employer has decided to do so, however, the use of these areas in detail is subject to the co-determination of the works council. At least as long as the terrace is equipped with tables and chairs, it is also part of the social facility "staff canteen," so that there a right of co-determination under Section 87(I)(8) Works Constitution Act exists as well. This concerns not only the opening hours, but also the specific use of the social facility within the scope of its general purpose. To this extent, the employer's domiciliary rights are limited.
The right of co-determination exists only during working hours, however. In addition, the basis for co-determination is the previous use time of the terrace. Since the door was generally locked in the winter and at most exceptionally opened (in case of good weather), the motion was excessive in this respect and therefore not successful.
The question as to whether the terrace is also part of the social facility staff canteen without being equipped with tables and chairs has been left open.
Notes for use in practice
With its decision, the State Labor Court confirmed the principles of jurisdiction.
Employers are free to decide without co-determination whether to use business premises as social facilities. Once the employer has decided to use the premises as a social facility such as a canteen, a fitness studio, or a yoga room, however, the works council has a co-determination right with respect to the design, use, and access rights of the rooms. In this respect, the employer's domiciliary rights are being limited.
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