Friendship Ends at Lunch - Works Council's Right of Co-Determination in the Implementation of the Corona Regulations

Curried sausage, schnitzel with chips, lentils with spaetzle, spaghetti bolognese, bami goreng, chicken fillet with vegetables, curry with rice, meatballs, burgers, sausages with mashed potatoes and fish on Fridays are among the most popular canteen meals. But at the moment, you can only dream of a lunch break in the canteen. The stomach growls and the employees' mouths water in vain. Due to the corona pandemic, many canteens are closed or are open only on a very limited basis. However, friendship ends at lunchtime and, literally, when it comes to money. This is true even when employers and canteen operators have no choice but to close or reduce supply due to the pandemic. Are or rather how are employees' representative bodies to be involved?

Dear Readers,

Many people - including myself as an enthusiastic canteen-goer - are affected. The canteen example serves to illustrate whether and, if so, how restrictions due to the corona pandemic in social institutions lead to co-determination rights of the works council and how they just do not.

The right to co-determination under Section 87 (1) No. 8 BetrVG

The works council has a right of co-determination under Section 87 (1) No. 8 of the German Works Council Constitution Act (BetrVG), which covers "the form, organisation and administration of social services whose scope is limited to the establishment, the company or the group". Social services include canteens, company sports facilities, company day nurseries, company buses or pension and benefit funds. The right of co-determination extends to the form, organisation and administration. In the first step, there is no co-determination as to whether such a social service is arranged or established at all. The employer is free to decide on this. The employer is also free to decide to terminate the social service completely.

Staff canteen of a university hospital

A university hospital operated staff canteens at its sites through its own service company. Due to the corona pandemic, it was informed in March 2020, among other things, that a new procedure for serving meals would apply. The regular operation of the staff canteen was restricted and replaced by "take-away offers". The seating area in the canteen was closed and the choice of dishes/food was reduced. In addition, special hygiene rules applied due to the pandemic.

Sigmaringen Administrative Court, decision of 15 February 2021 (PL 11 K 2615/20)

Due to the pandemic-related reduction of meals/food offered without the involvement of the employee representative body, the staff council applied for a declaration that the (partial) closure and reopening of staff canteens in connection with the corona pandemic violated the right of co-determination.

In its decision of 15 February 2021, the Sigmaringen Administrative Court declared that the staff council's application was successful. The Administrative Court stated that a canteen is a social facility in terms of co-determination law. In addition, the Administrative Court pointed out that restrictions on the scope of services of a canteen or the modalities of serving meals are measures of the administration of a social service facility.

The Sigmaringen Administrative Court also stated that the right of co-determination was not excluded from the precedence of the law and collective agreements. Precedence of law and collective agreements means that there is no right of co-determination of the staff council or the works council (Section 87 (1) BetrVG introductory sentence) if there are already statutory or collective agreement provisions on a subject and there is no more room for manoeuvre in the implementation which can be negotiated between the employer and the employee representative body. Should, however, a statutory or collective agreement provision leave the organisation of individual measures to the head of the department, the decision of the head of the department is subject to the co-determination of the employee representative body. At the time, the operation of restaurants and similar establishments was initially prohibited by the state government's ordinance until April 2020. But canteens for staff or members of public institutions were exempt from this. In the view of the Administrative Court, a right of co-determination thus continues to exist within the relevant regulatory scope.

Practical advice

The precedence of law and collective agreements must not be underestimated in practice. Within the scope of the corona pandemic measures, but also outside of this special situation, there is no right of co-determination of a works council or staff council if simply the (mandatory) requirements set out in law and collective agreement are implemented. Employers can try to follow these guidelines in order to be able to decide freely and without the works council's right of co-determination, for instance in the case of social services.

Now my stomach is rumbling, bon appétit and with warm (labour law) regards

Yours Dr Erik Schmid

^{Note: This blog post has already been published in the labour law blog of Dr Erik Schmid at Rehm Verlag.}