The Federal Labor Court has Resolution of March 08.03.2022, 1 (ref: 20 ABR 21/XNUMX) decided that the company-wide use of Microsoft Office 365 with the possibility of central control of employee behavior and performance requires, for compelling technical reasons, a cross-company regulation for which the general works council is responsible.

1. FACTS

A company that has several operations at different locations wanted to introduce Microsoft Office 2019 in all operations in 365. The individual components of Microsoft Office 365 should be managed centrally across the company (i.e. for all companies). The resulting data should also be stored uniformly in a cloud. From the company's perspective, all of this should serve the purpose of improving cross-company collaboration and information exchange.

The general works council approved the use of Microsoft Office 365. However, the local works council of one of the company's operations did not agree to the introduction. He took the view that he was looking for his local business Section 87 Paragraph 1 No. 6 BetrVG entitled to co-determination. For this reason he called the conciliation board Section 87 Paragraph 2 BetrVG and Section 76 Paragraph 5 BetrVG 

By decision of December 13.12.2019, 365, the conciliation board declared itself incompetent. The local works council then initiated proceedings before the responsible labor court. He requested a declaration that he was responsible for the introduction of Microsoft Office XNUMX. Both the labor court and the state labor court rejected the works council's application.

2. DECISION

The Federal Labor Court rejected the works council's appeal. The Federal Labor Court stated that in this specific case it was not the local works council, but rather the general works council that was responsible for exercising the right of co-determination Section 87 Paragraph 1 No. 6 BetrVG was responsible.

The court first emphasized that MS Office 365 is a technical monitoring device in the sense of Section 87 Paragraph 1 No. 6 BetrVG acts. The individual modules allowed the performance and behavior of employees to be monitored. Furthermore, a uniform solution is required due to the company-wide and cross-company central control of the software. For this reason, the general works council and not the local works council is responsible for the introduction. The court also pointed out Section 50 Paragraph 1 BetrVG. Accordingly, the GBR remains responsible for individual company-specific questions once its responsibility has been effectively established.

3. CONCLUSION 

This decision is positive for employers and companies. Fragmenting the software landscape within a company is not only impractical, but technically difficult to implement.