Federal Labour Court (Bundesarbeitsgericht - BAG) on the invalidity of a works agreement without a resolution of the committee

The Federal Labour Court (Bundesarbeitsgericht - BAG) ruled on 8 February 2022 (case no.: 1 AZR 233/21) that a declaration made by the works council chairperson on the conclusion of a works agreement cannot be attributed to the works council according to the principles of prima facie authority.


1. facts

In the proceedings, the parties disputed which classification system was decisive for the calculation of the plaintiff employee's remuneration. In the context of this dispute, the employer invoked what it considered to be a valid works agreement. The plaintiff, on the other hand, was of the opinion that this works agreement was invalid due to the lack of a works council resolution. The works council had adopted the works agreement with the majority of the members present. In any case, it was to be assumed that the chairman of the works council had a prima facie power of attorney.


Decision 2

The Federal Labour Court held that the works agreement at issue was invalid. Among other things, it stated in its decision: A works agreement signed by the chairperson of the works council cannot be validly concluded between the employer and the works council if there is no resolution of the works council (possibly also subsequently approving it) for its conclusion.

According to the legal conception, the works council acts as a collegial body. It formed its will through corresponding works council resolutions (§ 33 BetrVG). The declaration of the chairman of the works council was (pending) invalid and therefore in principle had no legal effect. Such a declaration could also not be attributed to the works council body on the basis of a prima facie power of attorney of the works council chairperson. Such a prima facie authorisation presupposed that the party represented (here: works council body) was not aware of the actions of the apparent representative (here: works council chairperson), but could have recognised and prevented them had he exercised due diligence. In addition, the contracting party must have trusted that the represented party knew and approved of the representative's actions.

However, these principles were not directly applicable to the relationship between the works council and the works council chairperson. The Works Constitution Act defines the role of the chairperson of the works council in a special way. Pursuant to section 26 (1) of the Works Constitution Act, the chairperson only represents the body within the framework of the resolutions passed. Accordingly, there was no representation in the will, but only in the declaration of the represented. This was an essential difference to the "classical" representation by proxy. A corresponding application to the conclusion of works agreements was also not necessary. Works agreements were so-called acts of private lawmaking because of the direct and binding effect on the addressees stipulated in section 77 (4) of the Works Constitution Act (BetrVG ). They shaped the employment relationships of the employees belonging to the enterprise irrespective of the will and knowledge of the parties to the agreement - solely by virtue of a statutory order. It would not be compatible with this character and the far-reaching effect if the mere initiation of a legal act by the works council or its members could establish the legal effect.


3. conclusion 

Employers should (and usually do) always obtain a copy of the minutes of works council meetings. This applies in particular if the works council has passed resolutions on works agreements. The employer has the right to do so under section 34 (1) sentence 1 of the Works Council Constitution Act (BetrVG ) - at least if it participated in the meeting.


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