Digital Works Council Work on the Home Straight: German Parliament Passes Bill
At the end of April, the German Parliament (Bundestag) adopted the resolution recommendation and the report of the Committee for Labour and Social Affairs (BT Printed Matter 19/18753) for a law on the promotion of continuing vocational training in structural change and the further development of training assistance. In particular, this is intended to include a new Section 129 in the German Works Constitution Act (Betriebsverfassungsgesetz, BetrVG) which will make the long-awaited digital works council work possible at least in times of the corona pandemic. Although the law still has to be discussed conclusively in the German Federal Council (Bundesrat) before it can enter into force, it is not yet in place. However, it can be assumed that the Federal Council will not object.
Video and conference calls now also for the works council
As a result of the new legal regulation, works council bodies are now also given the opportunity to pass resolutions via video and conference call for the time being. This opportunity is limited until 31 December 2020 and also covers resolutions already adopted, as the new regulation is to apply retroactively from 1 March 2020. The plausible objective is to avoid the face-to-face meetings associated with high infection risks as far as possible and at the same time to continue to ensure the works council bodies' ability to act and reach decisions.
Previously, sections 33 and 30 BetrVG stipulated that works council meetings could not be held in public and that resolutions could only be passed if a majority of the works council members physically present voted accordingly. Resolutions could not be passed by way of circulation or electronic communication on the basis of the previous legal regulation. For some time now, the thesis has been advocated in literature that resolutions could also be passed by video conference at least if no works council member objected. To date, however, there has been no legal basis for this.
However, the requirement of personal presence inevitably leads to problems in times of corona when large parts of the workforce, including of course the works council members, work from home. Under the existing legal situation to date, the works council would still have had to meet in person for its meetings. Deviating from this, works council meetings and resolutions can now be held via video conferences and conference calls on the basis of the new section 129 BetrVG. In individual cases, the works council chairperson will have to decide whether a meeting must be held in person or whether a meeting can be held via video conference and/or conference call. A prerequisite would then be that the works council members notify the works council chairperson in text form of their participation. Recording of meetings is not permitted and it must always be ensured that third parties do not become aware of the content of such meetings and resolutions. The regulations also apply analogously to the activities of the financial committee and to procedures within the framework of conciliation boards. In addition, it shall also be possible to organise works meetings using audiovisual equipment for a temporary period. In any case, sufficient work for the IT managers should be ensured.
Use of video and teleconferencing systems in compliance with data protection regulations
Naturally, when applying the new regulations the data protection requirements must not be neglected, especially when it comes to ensuring that third parties are not allowed to gain knowledge of the content of meetings and resolutions. When using the video and teleconferencing systems already in place in the company, care must therefore be taken to ensure that certain functionalities are either generally not available, or that existing functionalities which are potentially critical in terms of data protection are deactivated by default. The business version of the conferencing systems should be used, as this offers a higher security standard.
To ensure that only persons authorised to participate dial in, the works council must use the access restriction functions by using a password or the waiting room function. With the waiting room function, the administrator manually grants individual participants access to the virtual meeting room. It is also recommended that a session be "closed" once all participants are in the session. This way, no one from outside the works council can dial in, even if they know the password. The dispatch of a dial-in link that already contains the encrypted password should be avoided if it cannot be ensured that the link is not forwarded to unauthorised persons. In this case, a stricter standard applies with regard to works council work than for use in the general operation of the company.
In addition, recording of meetings is not permitted and may not be made even if all works council members agree to the recording. Section 129 BetrVG expressly forbids this and is in this respect not subject to contrary agreement (abdingbar), since with this regulation not only the legal protection of the personal rights of the works council members but above all the protection of the non-public nature of the works council meeting is aimed at. Chat recordings must also be deleted from the conferencing system after the meeting.
Tracking functions must also be switched off to prevent unauthorised monitoring of works council members during the meeting. Monitoring can be carried out by tracking the presence and activity status (active/inactive/absent) of the respective works council member on the one hand or by means of attention tracking during the meeting on the other. With attention tracking, the administrator can see whether the participant has the conference window actively open or in the foreground of the screen during the session.
Finally, the standard technical and organisational measures must be implemented when using software in order to guarantee the protection of personal data. With respect to conferencing systems, this includes in particular technical precautions which prevent third parties from accessing the webcam, login data or the system itself, the encryption of data (at least via transport encryption, but ideally via end-to-end encryption) and the use of data-minimising default settings. For the sake of data economy, the scope of functions must be limited to what is necessary for communication. As an organisational measure, a guideline can be considered in which specifications for the proper use of the video and teleconferencing system are made, thereby controlling the handling by the works council members which is permitted under data protection and works constitution law. In this context, private use may also be prohibited. In addition, the works council members must be trained accordingly in how to handle the system in compliance with data protection law.
The digital works council?
The long-awaited new regulation by the introduction of the new section 129 BetrVG gives the works council at least temporarily the additional opportunity to make decisions by video or conference call and thus secures its ability to act and its quorum in these difficult times. In particular, the data protection requirements have to be observed. From the employer's point of view, the temporary new regulation is to be welcomed because only effective works council decisions form a solid legal basis, for instance, when it comes to the conclusion of works agreements or a hearing before a notice of termination is issued.
Rechtsanwalt, Licensed Specialist for Labour Law