In a decision dated October 11, 2022(Ref.: 1 ABR 16/21), the Federal Labor Court ruled that an internal job advertisement cannot be made up for during consent substitution proceedings pursuant to Section 99 (4) BetrVG. Rather, at the request of the works council, employers must first advertise all vacant and open positions internally within the company before the works council is asked to give its consent.
The company petitioned the court for the replacement of the approval of an individual personnel measure. The parties had already concluded a works agreement several years ago. Among other things, this stipulated that "in principle" all vacant positions would be advertised internally. This regulation could only be deviated from by mutual agreement. The employer terminated the works agreement and shortly thereafter informed the works council that it wanted to temporarily assign 12 employees to new positions due to an operational reorganization. The works council, however, refused to give its consent, referring to the fact that, in its opinion, the internal job advertisement had not been carried out.
In the consent substitution proceedings before the Siegburg Labor Court, the employer stated that it had made up for the internal tenders as a precautionary measure. While the Siegburg Labor Court rejected the applications, the Regional Labor Court upheld the employer and replaced the consent. In particular, the Regional Labor Court did not see any reason for refusing consent pursuant to Section 99 (2) BetrVG. However, the works council's appeal to the Federal Labor Court was successful.
The Federal Labor Court considered the applications for substitution of consent to be unfounded. The works council had rightly refused its consent with reference to Sec. 99 (2) No. 5 BetrVG. An internal invitation to tender had not been issued, although the works council had expressly requested this. In the opinion of the Federal Labor Court, this omitted invitation to tender could not be made up for during the judicial consent substitution proceedings. Even the termination of the works agreement did not change this result. This only eliminated the further modalities regarding the invitation to tender, but not the right of the works council to demand an internal invitation to tender.
Companies should heed this decision and not speculate on the possibility that omitted internal tendering may still be made up for during the judicial consent substitution proceedings.