Das Betriebsrätemodernisierungsgesetz schweigt. Aber Rechtssichere digitale Lösungen bleiben möglich.
In the shadow of the pandemic, the German government has devoted itself to the (supposed) modernization of works constitution law. We reported on this in the blog post "Everything new in May - the draft law on the Betriebsrätemodernisierungsgesetz" (Works Council Modernization Act). However, the law is sobering with regard to virtual conciliation bodies.
Current legal situation until the end of June 30, 2021
Currently, the participation and passing of resolutions by a reconciliation committee by means of video and telephone conferences is permitted (Section 129 (1), (2) BetrVG). These regulations were and are absolutely necessary, particularly during the lockdown caused by the pandemic. This is because it was and is simply not possible for the reconciliation committee to meet in person during this time. According to the current legal situation, the only requirement for virtual meetings is to ensure that third parties cannot take note of the content of the meeting. Recording is also not permitted.
Unfortunately, the possibility of holding virtual reconciliation committee meetings is expected to end at the end of June 30, 2021. A short-term extension of the temporary regulation is not completely ruled out - this was shown by the actions of the legislative and regulatory bodies during the pandemic - but is unlikely. This is regrettable. But will the Works Council Modernization Act help here? The clear answer is: No.
From July 2021 - no more virtual reconciliation committee
The Works Council Modernization Act is silent on virtual reconciliation committee. As things stand at present, virtual reconciliation committees will no longer be possible from July 1, 2021, at least not in a legally safe manner. Although lawyers have recently been increasingly discussing the admissibility of virtual reconciliation committees even in the absence of a clear legal provision, there are still considerable legal uncertainties, in particular because there is a lack of robust case law on the subject. From July 1, 2021, legal certainty will therefore (once again) only be provided by meetings of the reconciliation committee held in person. Despite all the joy about the currently falling incidence rates, the pandemic is not yet over. The imminent end of the statutory regulations on the virtual reconciliation committee is therefore highly questionable for reasons of infection control alone. For many companies, this is an unsatisfactory situation. The legislator is not helping them in this regard.
This is all the more surprising because the Works Council Modernization Act will make virtual works council meetings possible on a permanent basis in the future. Although face-to-face works council meetings are to take precedence, complete works council meetings or the participation of individual works council members can take place virtually.
In addition, it will be possible to conclude works council agreements in electronic form in the future. This also applies to reconciliation of interests and social plans. In the case of decisions by the reconciliation committee, as an alternative to the written form, the chairman has the option of adding a qualified electronic signature to the document and forwarding it to the parties to the works council. Against this backdrop, the demise of legally secure virtual reconciliation committees is even more difficult to explain. But don't fret about the legislator, good alternatives already exist.
Legally secure alternative: virtual conversations
The aim should be to avoid the need for formal reconciliation committee proceedings in the first place. Even if the reconciliation committee is emphasized as particularly desirable, especially at further training events for works councils, there is another way.
Start earlier in the discussions with the works council. Talk to each other, convince the works council that talking is the way to go. All this is possible at any time, even now, even virtually. A reconciliation committee is not required for this. Within the framework of these virtual talks, legally secure and binding final agreements are possible. The parties do not need a ruling from the reconciliation committee. Another major advantage is that the parties have the solution in their own hands. It is not the chairman of the reconciliation committee who makes a decision, but the parties themselves.
Employees and business partners will have fond memories of the trusting cooperation during the crisis. This applies not only during the current pandemic, but of course afterwards as well.
Use the alternatives
Detached from changes to works constitution law, legally secure solutions in digital form are and remain possible. Discussions and negotiations in the form of workshops, closed-door meetings, moderated discussions or business mediation - all of these are always possible, and changes to the law are not necessary for them. We would be happy to advise you in this regard and accompany you in these discussions and negotiations: Mediation at vangard | Littler.