In a decision dated October 11.10.2022, XNUMX (Ref: 1 ABR 16/21) decided that an internal job advertisement should not be submitted during a consent replacement procedure Section 99 Paragraph 4 BetrVG can be made up. Rather, at the request of the works council, employers must first advertise all vacant positions within the company before asking the works council for approval.

1. FACTS

The company asked the court to replace the consent to an individual personnel measure. The operating 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 afterwards informed the works council that it wanted to provisionally assign new positions to 12 employees due to a company reorganization. However, the works council refused to give its consent, citing what it believed was a lack of internal job advertisements.

2. DECISION

In the consent replacement procedure before the Siegburg Labor Court, the employer announced that it had rescheduled the internal advertisements as a precautionary measure. While the Siegburg labor court rejected the applications, the state labor court ruled in favor of the employer and replaced the consent. In particular, the State Labor Court did not see any reason for refusal of consent Section 99 Paragraph 2 BetrVG. However, the works council's legal complaint to the Federal Labor Court was successful.

The Federal Labor Court viewed the requests for replacement of consent as unfounded. The works council rightly gave its consent with reference to Section 99 Paragraph 2 No. 5 BetrVG refused. There was no internal tendering process, even though the works council had expressly requested this. According to the Federal Labor Court, this failure to advertise could not be made up for during the court approval replacement process. Even the termination of the works agreement does not change this result. This only eliminates the further modalities regarding the tender, but not the right of the works council to demand an internal tender.

3. CONCLUSION 

Companies should take note of this decision and not speculate that internal tenders that have been omitted can possibly be made up for during the court approval replacement process.