In its decision v. February 08.02.2022, 1 (Az: 2 ABR 21/XNUMX) decided that a works council that was only founded after the implementation of a company change had begun was not entitled to an enforceable right of co-determination to conclude a social plan.
1. FACTS
The parties involved are arguing about the applicant works council's enforceable right of co-determination to conclude a social plan. The company involved had two operating locations. On June 22.6.2018, 31.8.2022, it informed employees that it would shut down operations on August 5.7.2018, XNUMX and that all employees would be terminated for operational reasons. A short time later (on July XNUMX, XNUMX) the invitation to appoint an electoral board was posted in the company. A week later an election meeting took place. The newly elected works council subsequently unsuccessfully asked the company several times to enter into social plan negotiations with it. The conciliation board set up by the labor court at the request of the works council declared itself incompetent with a ruling. The works council then sued for a declaration that it had an enforceable right of co-determination to conclude a social plan with regard to the operational change (closure).
The labor court rejected the application. The state labor court rejected the works council's complaint against this. The works council also pursued its request before the labor court with a legal complaint.
2. DECISION
The Federal Labor Court confirmed (as a result) the decision of the State Labor Court. The works council has no enforceable right of co-determination to conclude a social plan.
According to the established case law of the Federal Labor Court, the works council of a company without a works council, which is only elected after the implementation of the operational change has begun, does not have to demand the creation of a social plan.
The works council's participation rights and the associated obligation of the employer to involve them arise at the moment when the facts to which the respective law is linked are realized. This applies to the participation and co-determination rights of the works council §§ 111 ff. BetrVG the intended and therefore future operational change. It forms the subject of co-determination both in a reconciliation of interests and - in relation to its consequences - in a social plan. The involvement of the works council should generally take place before the operational change is implemented. Therefore, the works council can no longer have an enforceable right of co-determination to conclude a social plan if it had not yet been formed at the time the employer began implementing the operational change.
3. CONCLUSION
The decision is convincing. All interpretation methods regarding the §§ 111ff. BetrVG show that such an understanding is accurate. How is the employer supposed to involve a works council that doesn't yet exist? In addition, a subsequent involvement of the works council - i.e. at a point in time when the operational change has already been determined - would not correspond to the purpose of the law. The works council should be able to influence the content of the change through its participation. But this is impossible if the operational change has already been implemented. Consequently, within the scope of §§ 111ff. BetrVG It is correct that only one existing works council should be involved.
