The Federal Labor Court In its resolution of October 17.10.2023, 1 (ref. 24 ABR 22/XNUMX) decided on the works council's right of co-determination in the ban on private cell phone use in the workplace. According to this, the works council has no right of co-determination Section 87 Paragraph 1 No. 1 BetrVG.
1. FACTS
The employer is a manufacturing company in the automotive supply industry with around 200 employees. She posted a notice instructing employees in the company to refrain from using smartphones privately during their entire working hours. This also included periods of idleness or waiting times that can arise in production, for example when machines are converted. The responsible works council, which was not involved before the ban was announced, exercised its right to co-determination Section 87 Paragraph 1 No. 1 BetrVG violated in questions of operational order and the behavior of employees. He therefore considered the ban on use to be ineffective and demanded that it be withdrawn. After the employer rejected this, the works council initiated a resolution process.
The Braunschweig labor court rejected the application. The Lower Saxony State Labor Court rejected the works council's complaint. The employer's legal complaint before the Federal Labor Court was also unsuccessful.
2. DECISION
In the opinion of the BAG, the ban on the private use of cell phones during working hours does not give the works council a right of co-determination, since it is not a question of the order of the company or the behavior of the employees in the sense of Section 87 Paragraph 1 No. 1 BetrVG act.
If a measure has an impact on regulatory behavior and work behavior at the same time, it depends on which regulatory purpose predominates. Such a ban on cell phones does not establish any rules of conduct that affect company coexistence and cooperation. Rather, the work behavior and the way in which the work is performed are affected, since the contractually agreed work performance should not be interrupted by the private use of smartphones. According to the BAG, this is a specification of the work obligation and not a rule that affects orderly behavior during work.
The Federal Labor Court decided differently in 1986 when it considered the ban on listening to the radio during working hours to be subject to co-determination. However, while listening to the radio can also be done casually (passively) and therefore does not necessarily hinder the performance of one's work, using a smartphone goes hand in hand with the active operation of the control interface, so that the cases differ significantly from one another.
3. CONCLUSION
The Federal Labor Court's decision provides clarity on a previously controversial issue by providing a further point of reference for distinguishing between regulatory behavior that requires co-determination and work behavior that does not involve co-determination with regard to the use of mobile devices in everyday work. Despite the BAG's clear answer to the question in the case of smartphone use during working hours, employers are recommended to find a joint solution together with the works council in order to avoid any legal disputes. In practice, the lines are rarely clear. For example, if the employer allows private use to a certain extent, the works council must have a say in the design of the corresponding regulations. Such a ban on cell phone use also constitutes a labor law instruction within the meaning ofs § 106 GewO and must therefore correspond to “reasonable discretion”.
