Judgment of the Federal Labour Court of 28 July 2020 in Case 1 ABR 41/18
The employer and the works council do not have the power to make rules concerning the constitutionally protected rights of workers (protected under Article 9 (3) of the Basic Law (Grundgesetz)), who are members of a workers’ union, to actively participate in the work of their union by sharing information or advertising materials about the union in the workplace and thereby supporting the union in achieving its goals
Facts of the case
Four employees, who were members of a workers union, set up an information stand on the company premises and started to share advertising material for ver.di outside of their working hours. The employer prohibited this action.
The works council then got involved and complained that the prohibition constituted a measure relating to the rules of operation and conduct of employees under § 87 (1) No (1) of the Works Constitution Act (Betriebsverfassungsgesetz, BetrVG), and the works council, therefore, had a co-decision right. The works council there brought an action before the Court seeking an order for the employer to avoid taking any similar decisions without the prior approval of the works council or a ruling of a conciliation board.
As at the lower instances, the Federal Labour Court (Bundesarbeitsgericht) rejected the application of the works council. The sharing of union advertising by employees who are members of the union is not an operation or conduct within the meaning of § 87 (1) No 1 of the Works Constitution Act. The constitutionally protected right of workers to actively participate in the activities of their union by sharing advertising materials within the workplace may not be negotiated between the employer and the works council. For this reason, the view of the works council also does not need to be taken into account by the employer when adopting a measure that seeks to limit this union activity.
Consequences for practice
The judgment of the Federal Labour Court is clear and welcome from an employer’s perspective. It provides further information about the relationship between the employer and the works council and towards the unions. In the future, any objections of the works council on the supposed circumvention of its co-decision rights in relation to the prohibition of union activities in the workplace can be rejected with legal certainty.
The question of whether the employer may prohibit certain measures must be viewed on a case-by-case basis. Employees, who are members of the union, have the right, in principle, to distribute union advertising materials within the workplace outside of their working time and during their breaks. The employer may only limit this right where there are important interests that are also of a constitutional nature and which outweigh the workers’ rights in the case. Such interests can include the disturbance of workflows and of the peace within the workplace or in preserving the trust in the neutrality of the state.
Author: Jonas Türkis