In a decision dated May 26, 2023 (Case No. 12 TaBV 1/23), the Baden-Württemberg Regional Labor Court ruled on co-determination in the event of a reduction in the remuneration of the works council chairman. If the employer reduces the remuneration of the works council chairman, a works council committee has no right of co-determination.
1. facts
Großkraftwerk Mannheim AG (GKM) operates a plant in Mannheim with around 500 employees and 60 trainees. There is an eleven-member works council at the Mannheim site. The chairman of the works council (an employee of GKM for many years) has been a member of the works council since 1994 and was released from work in 1998 due to his work on the works council.
Until he was released from his duties, he worked as a locksmith and was grouped and remunerated in accordance with the company's collective wage agreement at GKM AG. In March 2002, he took office as Chairman of the Works Council. Since 2006, he has been managed and remunerated as a non-tariff employee. In March 2011, he was also provided with a company car for private use.
In June 2022, GKM AG reduced the remuneration of the works council chairman and withdrew his company car. In the opinion of GKM AG, the remuneration was to be determined on the basis of the development of remuneration of those employees who were comparable to the works council chairman before he took office as works council chairman, i.e. who were grouped in the company collective agreement.
In the view of the works council, however, the reduction in remuneration constituted a regrouping within the meaning of the Works Council Constitution Act (BetrVG). The committee initiated a resolution procedure to oblige the employer to obtain the works council's consent to the regrouping of the works council chairman.
The Mannheim Labor Court rejected the works council's motion.
Decision 2
The Regional Labor Court (LAG) rejected the works council's complaint against this. Whether the reduction in remuneration was correct could be left open, as the LAG only had to decide whether the works council had a right of co-determination in this reduction.
However, the LAG denied such a right of co-determination. It was "only" an application of the law pursuant to Sec. 37 (4) Sentence 1 BetrVG. This does not represent a grouping or regrouping pursuant to Sec. 99 (1) Sentence 1 BetrVG.
Due to the leave of absence, the works council chairman does not perform any activities which could be evaluated in the application of a relevant collective remuneration regulation in the sense of a grouping or regrouping. The determination of the comparative remuneration and the reduction in remuneration based on this is rather based on a mere average calculation of the remuneration of suitable comparable employees.
Due to the fundamental importance of the question of the works council's right of co-determination, the LAG has allowed an appeal to the Federal Labor Court.
3. conclusion
The decision of the LAG Baden-Württemberg is in line with an earlier decision of the LAG Düsseldorf (decision dated 19.3.2019 - 8 TaBV 70/18). It remains to be seen whether the BAG will follow the opinion of the LAG - although the legal situation is clear in our view. In any case, it is important for the parties to the agreement to specify exactly who is part of the comparison group in the case of exemptions and also to define this group in the case of changes in remuneration in order to avoid disputes about (punishable) disadvantage or favoritism of exempted works councils.
