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The works council does not have right of co-determination concerning the prohibition of advertising materials for workers unions in the workplace
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 distribute 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 right of co-determination. The works council therefore brought an action before the Labor Court seeking an order for the employer to avoid taking any similar deci-sions without the prior approval of the works council or a ruling of a conciliation board.
The judgement
Like the previous instances, the Federal Labour Court (Bundesarbeitsgericht) also rejected the works council's application. The court clarified that the distribution 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. This is because 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 works council does not have to be taken into account in the event of a measure by the employer restricting trade union activity.
Consequences for practice
The decision from the Federal Labour Court is convincing and is to be welcomed from the employer's point of view. It provides further information on the relationship between the company parties and the trade unions. In the future, any objections by the works council on the grounds of alleged overriding of co-determination in connection with the prohibition of trade union activity in the company can be rejected with legal certainty.
Our tip
The question of whether the employer may prohibit certain measures must be viewed on a case-by-case basis. Employees, who are trade union members basically have the right to distribute trade union advertising material in the workplace outside working hours and during breaks. The employer may only limit this right where there are important interests which are also of a constitutional rank and which outweigh the workers’ rights in individual cases. These include, among other things, the disruption of the work process and industrial peace or the preservation of confidence in the neutrality of the state.