The Federal Labor Court decided by resolution of December 13.12.2023, 1 (ref. 28 ABR 22/XNUMX) to submit application documents to the works council for digital recruiting. According to this, an employer who carries out the application process for an advertised position digitally using a software program satisfies his obligation to submit the application documents to the works council if he follows its members for the duration of the approval process Section 99 Paragraph 1 BetrVG You are granted the right to inspect the application documents stored in the program - which can be used at any time using the laptops provided - and have the opportunity to take notes.
1. FACTS
The parties involved are arguing about replacing the consent to employ an applicant. The employer is a company in the beverage industry that regularly employs more than 20 eligible employees. The members of the works council have laptops which they can use for their works council activities. In her company, the employer uses software for “recruiting”. The program manages, among other things, job advertisements and contains an internal and external applicant portal. Applications received in paper form will be digitized.
In spring 2021, the employer advertised the position of “process and project specialist technology”. 33 external applications were received. The “application documents” were stored in the “Recruiting” program. The works council refused to approve the planned hiring. He believes he was not properly informed. The “application documents” should have been presented to him in paper form. The employer then requested a declaration that the consent was deemed to have been given and, alternatively, that the consent be replaced by the court.
The Halle Labor Court approved the application for replacement of consent. Both the works council's complaint against this before the LAG Saxony-Anhalt and the legal complaint before the BAG were unsuccessful.
2. DECISION
In the opinion of the BAG, the approval process had been initiated properly. The employer is also obliged to fulfill its obligation in accordance with Section 99 Paragraph 1 Sentence 1 BetrVG complied with the obligation to submit the necessary “application documents” to the works council.
The members of the works council were inferior No. 8 of Appendix 3b to the KBV a right to inspect the “data fields” of the “Recruiting” program listed there. Using the laptops available, they were able to view the cover letters and CVs stored in the program at any time, as well as – if submitted – references and certificates from a total of 33 external applicants for the position of “process and project specialist technology”. According to the BAG, the employer (contrary to what the works council believed) was not required to present the interested parties' "application documents" to the works council in paper form. This results in the interpretation of Section 99 Paragraph 1 Sentence 1 BetrVG.
The wording conveyed by the wording of the standard makes it clear that the employer only has to provide the works council with digitally available “application documents” in this form. Such an understanding also corresponds to the meaning and purpose of the regulation. This applies in particular if the employer - as here - follows the members of the works council for the duration of the approval process § 99 BetrVG grant the right to inspect and read the digital “application documents” of all interested parties. This gives the works council the opportunity to obtain the information it needs in order to issue a statement Section 99 Paragraph 2 BetrVG to be able to give away. The ability to access the stored applicant data at any time using existing laptops allows him to make his own suggestions for a selection or to point out circumstances that, in his opinion, speak for another applicant.
In the opinion of the BAG, data protection considerations did not lead to any other result. The works council's digital right of inspection is limited to those documents that - if they were physically available - would have had to be made available to the works council in this form. The data processing involved is according to Article 6 paragraph 1 subparagraph 1 letter c and paragraph 3 GDPR in conjunction with Section 26 Paragraph 1 Sentence 1 BDSG required because they fulfill an in Section 99 Paragraph 1 Sentence 1 BetrVG serve the employer's intended duty. In addition, the members of the works council are in any case obliged to maintain secrecy about the personal circumstances and affairs of the employees that have become known to them in this context.
3. CONCLUSION
The Federal Labor Court's decision is of considerable practical relevance because more and more companies are using digital application processes. The transformation of the world of work requires that the company parties can also work together via digital media. According to the present decision, employers fulfill their obligation to provide information in the recruitment process if they have provided the works council with the necessary technical equipment, such as a laptop, and the latter can take notes. This ensures that the digital viewing and reading rights required by the BAG are preserved. Access to the application documents only needs to be made available for a limited period of time. However, it is important to avoid technical problems so that the works council actually has access to the application documents for the duration of the approval process. In addition, access to the “necessary” documents must be limited.
