Not virtual, virtual, not virtual, virtual...

January 2022 · Estimated read time: mins

... so lautet die kurze Zusammenfassung der Entwicklung der Gesetzeslage zur virtuellen Einigungsstelle.

... this is the short summary of the development of the legal situation regarding the virtual sessions of the conciliation body formed to resolve impasses in negotiations with the works council. This back and forth of the legislator is hardly comprehensible for the operational practice.  And there is currently no end in sight.


What has happened so far

Participation in meetings of the conciliation body and the passing of resolutions can also take place by means of a video and telephone conference - this did not apply before the current pandemic, at least not in a legally secure manner. Due to the pandemic, the legislator opened up the possibility of virtual conciliation body meetings, but this was only valid for a limited period until June 30, 2021. We had reported on this and shown alternatives: Although the legislator had in the meantime made virtual works council meetings possible in principle and for an unlimited period, it did not do so for meetings of the conciliation body.


Virtual conciliation body is back - why not make it permanent at last?

Due to the current pandemic situation, the legislator has now acted again: The virtual conciliation body is back (Section 129 (2) of the Works Constitution Act). The legislative package "Act to strengthen vaccination prevention against COVID-19 and to amend other regulations in connection with the COVID-19 pandemic" is in force. This means that participation in meetings of the conciliation body and the adoption of resolutions by means of a video and telephone conference are once again possible on a sound legal basis. The prerequisite is that third parties cannot take note of the content of the meeting. Recording is not permitted. Participants taking part in a video and telephone conference must confirm their presence to the chairman of the conciliation body in text form. 

Likewise, by the way, workplace townhall meetings, works council meetings, meetings of the youth and trainee assembly, meetings of senior executives under the Spokespersons' Committee Act, meetings of homeworker committees, and meetings of bodies under the European Works Councils Act, the SE Employee Involvement Act and the SCE Employee Involvement Act can be held virtually (again). 

So far, so good - but what is regrettable is that all these regulations once again only apply for a limited period, this time until the end of March 19, 2022. Although there is a one-time possibility of an extension of up to 3 months (for the virtual conciliation body in Section 129 (3) of the Works Constitution Act), these regulations still do not apply permanently. 

According to the current explanatory memorandum to the Act, the increased incidence figures in conjunction with a vaccination rate that is still insufficient make it necessary to allow these meetings and sessions to be held (again) without the physical presence of the participants. This is, of course, correct. However, operational practice shows that it is possible to hold virtual agreement meetings completely detached from incidence figures and vaccination rates without physical presence.


End again - comeback not excluded

The renewed end of virtual conciliation bodies is therefore - as of today - already certain. This will be at the end of March 19, 2022 or at the latest at the end of June 19, 2022.  For 2022, however, a further comeback of the virtual conciliation body after its discontinuation cannot be ruled out, particularly in light of past experience. However, the legislator would do better to question already now why the possibility of virtual conciliation board meetings as well as the other meetings and assemblies mentioned above should not be possible for an unlimited period. After all, the technical prerequisites are completely independent of the respective pandemic situation.


Use alternatives

Our credo remains to avoid formal conciliation proceedings as preventively as possible. The parties can hold legally secure digital discussions at any time. A conciliation body is not required for this. Moreover, discussions can be held completely independently of the legal requirements of the Works Constitution Act. Another major advantage of (digital) talks is obvious: It is not a third party, the chairman of the conciliation board, who decides, but the parties themselves who have the solution in their hands. All this is already possible. We are of course happy to assist you in discussions with the works council. Please feel free to take a look:

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