According to the Düsseldorf Regional Labor Court (Landesarbeitsgericht – LAG) (decision dated January 6, 2021 – 4 TaBVGa 6/20), a claim by the works council for prohibition of an operational change asserted by way of an interim injunction is possible to secure the participation rights under Sections 111,112 of the German Works Constitution Act (Betriebsverfassungsgesetz – BetrVG).
However, if the works council is elected at a point in time at which the planning of the operational change has already been completed and the implementation of the plan has begun, the works council has no right of participation under Sections 111, 113 BetrVG and thus no right to an injunction.
1. Facts of the Case
In the case decided by the Düsseldorf Regional Labor Court, two employers operated various medical facilities in the form of a joint operation
In the context of the planning of a restructuring, the management had already published an organizational chart on the future structure of the joint operation within the company by e-mail dated July 27, 2020. According to this organizational chart, several work areas of the business were to be outsourced.
The works council, which was elected for the joint operation on August 31, 2020 and constituted itself in its first meeting on September 9, 2020, requested the two employers by way of an interim injunction to refrain from dismissing employees due to the intended partial shutdown of the company.
The Claim for a temporary injunction was rejected in the first instance. The works council filed an appeal against this decision with the Regional Labor Court.
The Düsseldorf Regional Labor Court dismissed the works council’s appeal. However, the court emphasized that an injunction to secure the works council’s right of participation under Sections 111, 112 BetrVG was in principle possible. The works council’s substantive right of participation can in any case be enforced in court by way of an injunction on the basis of the required interpretation of EU Directive 2002/14/EC and is not subject to the employer’s discretion.
Nevertheless, an injunction was to be rejected in the specific case because it was not possible to determine with certainty whether the works council is entitled to participation pursuant to Section 111 BetrVG. However, if the existence of the right to participation is uncertain, the issuance of an interim injunction requires a reason of particular weight beyond the mere danger of the loss of the right to participation.
The Düsseldorf Regional Labor Court also confirmed that a right of participation and thus also a claim for injunctive relief cannot be considered if the works council is only established at a time when the planning of the operational change has already been completed and the implementation of the plan has already begun. This applies even if the employer was aware that a works council was to be elected in the company.
3. Practical Advice
With the decision of the LAG Düsseldorf, a Regional Labor Court has once again taken a position on the controversial question of whether the works council can prohibit the employer from implementing an operational change until the participation procedure has been completed. As recently as December 2020, the Berlin-Brandenburg Regional Labor Court ruled that a claim for injunctive relief, which serves to prohibit a change in operations as such, could not be considered.
A decision by the Federal Labor Court (Bundesarbeitsgericht – BAG) is still pending. This is mainly because the injunctive relief is mostly sought in proceedings for interim relief, in which appeals to the Federal Labor Court are generally not permitted. For the time being, therefore, employers are referred to the decisions of the competent Regional Labor Courts for guidance.
For your orientation, you will find below an overview of which Regional Labor Courts or Chambers are currently in favor of or against such a claim for injunctive relief.
|In favor of injunctive relief:||Against injunctive relief:|
|LAG Düsseldorf (2021 4th Chamber)||LAG Berlin-Brandenburg (2020 26th Chamber; 2014 7th Chamber)|
|LAG Hamm (2015, 2007, 2003, 1983)||LAG Rheinland-Pfalz (2017, 2014)|
|LAG Berlin-Brandenburg (2013, 17th Chamber)||LAG Baden-Württemberg (2009, 1985)|
|LAG Schleswig-Holstein (2010, 2007)||LAG Köln (2009)|
|LAG Hessen (2010, 1984, 1982)||LAG Nürnberg (2009)|
|LAG München (2008 6th Chamber)|
|LAG Niedersachsen (2007)||LAG Düsseldorf (2005 12th Chamber)|
|LAG Thüringen (2000)|
|LAG Hamburg (1997, 1981)|
Dr. Lorenz Mitterer Julia Ranzinger
Specialist Lawyer for Employment Law