participate in designing employer projects, but also to considerably delaying and sometimes even preventing them. The Federal Labor Court has now decided how to deal with situations where the works council abuses the law by putting up blockades, thus demonstrating clear limits to purely obstructive works councils.

Federal Labor Court, March 12, 2019, 1 ABR 42/17

The facts of the case

A hospital operator in Lower Saxony drew up monthly work rosters for medical and nursing staff and submitted them to the works council with a request for approval. The works council, however, refused to fully approve the work rosters and rejected them in part for several months in succession. An agreement before the conciliation body was not possible either; the works council – with the exception of a single case – not only refused the employer's efforts to form a conciliation body by mutual agreement, but also further delayed its meeting after an appointment by the labor court, rejecting timely appointment proposals and failing to appoint assessors voluntarily. The works council merely referred to inadequate staffing levels, among other things, but did not raise any specific objections to the work rosters. The works council considered the implementation of a conciliation body to be "not sensible" due to its complexity.

Since this "game" was repeated for several months, the employer, after some time, started to announce the work rosters to its employees despite the partially lacking consent of the works council and to use staff according to the work rosters.

Before the labor court, the works council claimed that its co-determination rights had been infringed and requested among others from the employer to refrain from publishing work rosters without the works council's prior consent.

The decision

In the first instance, the works council's request for the aforementioned injunction was dismissed, while Lower Saxony State Labor Court granted it (and other injunction requests) in response to the works council's appeal. The employer subsequently filed an appeal on points of law.

The Federal Labor Court ruled that the State Labor Court wrongly granted the works council's requests.

The works council would neither be entitled to the general injunction claim under Section 87(I) Works Constitution Act nor the injunction claim under Section 23(III) Works Constitution Act. The employer had repeatedly infringed the works council's right of co-determination under Section 87(I)(2) Works Constitution Act by publishing monthly work rosters in the company and thereby exercising its right to issue instructions to the employees without having reached prior agreement with the works council or having brought about its replacement by the conciliation body.

The assertion of a right to an injunction on the basis of the special circumstances of the case, however, was precluded by the objection of unlawful exercise of the right. The principle of cooperation based on trust was the governing measure as for how the employer and the works council had to exercise their mutual rights and obligations. They would also have to take the interests of the other party into account. An infringement of the principle of cooperation based on trust could therefore exist in strictly limited exceptional cases where either the employer or the works council relied on a formal legal position towards the other party, which it only acquired through its own conduct in particularly serious infringement of works constitution laws.

This was the case here. To ensure the provision of hospital services according to the needs of the population, the employer is dependent on drawing up work rosters at regular intervals. Therefore, the works council is required to do everything in its power to reach an amicable solution with the employer within the scope of its right of co-determination relating to the distribution of working time. The works council had violated this to a considerable extent, since it had neither attempted to reach an agreement within the company nor tried to reach a solution by means of a conciliation body. Rather, it had persistently rejected all attempts to reach a compromise, without justified grounds for its obstructive conduct.

Tips for use in practice:

This jurisdiction of the Federal Labor Court now sets clearer limits for works councils in asserting claims for injunctive relief. Although it remains to be seen to what extent the courts will apply the principles of the decision beyond the area of health care, the Federal Labor Court had justified the employer's special interests in the constructive cooperation of the works council specifically with the employer's legal obligation to provide hospital services to insured persons. It also emphasized that inadmissible exercising of rights could only be presumed in strictly limited exceptional cases. Nevertheless, in the future, works councils will have to consider the possibility that they will no longer be able to obtain injunctive relief if they entirely refuse to negotiate in matters of importance to the employer without understandable reasons.

The decision is to be welcomed, as it emphasizes the duties of works councils to cooperate and is likely to render pure blockade strategies considerably more difficult.

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