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Works councils do not have a right to permanent access to gross pay lists

Submitted by Firm:

Judgment of the Federal Labour Court of 29 September 2020 in Case 1 ABR 32/19

Works councils do not have a right to permanent access to gross pay lists either under the Works Constitution Act or the Act to Promote Transparency in Wage Structures.

Facts of the case

The employer is a company in the health sector. The works committee called on the employer to provide it with the gross pay lists. The works council demanded that they be given the gross pay lists for the period June 2018 to November 2018 in an electronic form. In addition, the lists should include information about sex, the standard rate under the collective bargaining agreement, any allowances, bonuses and special compensation of any form, premiums and bonus payments.

The employer refused to provide such a list. The works council appealed and commenced legal proceedings for the provision of the list.

The judgment

The Federal Labour Court (Bundesarbeitsgericht, BAG) held that there was no right of access to a permanent version of the list in an electronic form. In principle, the works committee or works council can request access to documents. This only applies to documents that the employer has. There is no right to request that certain documents be produced.

The works council also failed to show that access to such a list was necessary for it to carry out its duties. If the works council seeks to use the list to promote equal pay, it needs to specifically state which support measures require the requested information. A general reference to general tasks is not sufficient. In addition, the Court stressed that monitoring tasks focus on the present and the future, so that information from the past would be excluded per se.

The Court also discussed the limits under data protection law. The provisions of the Act to Promote Transparency in Wage Structures did not justify the provision of the lists either.

Consequences for practice

The Federal Labour Court resolutely drives forward its jurisprudence on the works council’s rights to information. This includes the encouraging trend that allows employers to refuse to provide information when the works council fails to refer to one of its specific duties. Simply reiterating the law is insufficient.

Between the lines, the Court implies that, in addition to the standards established by the Works Constitution Act, data protection standards must also be examined in the future. This means that the Court will perform a double necessity test on any claims for information – under the Works Constitution Act (specific reference to a duty) and the General Data Protection Regulation (legality of the data processing). This is welcome because the requirements of the GDPR still have to be fulfilled within the framework of the Works Constitution Act.

Our tip

If the works council demands certain lists or information, such as, for example, gross wage information, access can – for now – in principle be refused on various grounds. Employers should always (have) examine(d) which specific duties the works council is performing and whether the requested information has a direct connection to that duty. The employer can reject a blanket request with a demand that the request be substantiated.

Author: Dr Dominik Sorber