In its decision of March 8, 2022 (Case No. 1 ABR 20/21), the Federal Labor Court ruled that the uniform use of Microsoft Office 365 within a company with the possibility of centralized monitoring of employee behavior and performance requires a cross-company regulation for compelling technical reasons, for which the central works council is responsible.
A company with several operations at different locations wanted to introduce Microsoft Office 365 in all operations in 2019. The individual components of Microsoft Office 365 were to be managed centrally on a company-wide basis (i.e. for all sites). The data generated was also to be stored uniformly in a cloud. From the company's point of view, this was all intended to serve the purpose of improving cross-company collaboration and the exchange of information.
The central works council agreed to the use of Microsoft Office 365. However, the local works council of one of the company's plants did not agree with the introduction. It was of the opinion that it was entitled to co-determination for its local plant in accordance with section 87 (1) no. 6 BetrVG. For this reason, it appealed to the conciliation body pursuant to Section 87 (2 ) BetrVG and Section 76 (5) BetrVG.
By resolution dated December 13, 2019, the conciliation body declared itself to be without jurisdiction. The local works council then instigated proceedings before the competent labor court. It applied for a declaration that it was responsible for the introduction of Microsoft Office 365. Both the labor court and the regional labor court rejected the works council's application.
The Federal Labor Court dismissed the works council's appeal on points of law. The Federal Labor Court stated that in the specific case it was not the local works council but rather the central works council that was responsible for exercising the right of co-determination pursuant to Section 87 (1) No. 6 BetrVG.
The court first emphasized that MS Office 365 is a technical monitoring device within the meaning of Section 87 (1) no. 6 BetrVG. This is because the individual modules allow the performance and behavior of employees to be monitored. Furthermore, the company-wide and cross-company central control of the software requires a uniform solution. For this reason, the central works council and not the local works council was responsible for the introduction. In addition, the court referred to Section 50 (1) BetrVG. According to this, the GBR also remains responsible for company-specific individual issues once its responsibility has been effectively established.
For employers and companies, this decision is positive. Fragmenting the software landscape within a company is not only impractical, but also technically difficult to implement.