Reduction in the compensation of the works council chairman – co-determination

September 10, 2023

The Baden-Württemberg State Labor Court In a resolution dated May 26.05.2023, 12 (case number: 1 TaBV 23/XNUMX), the company decided on co-determination in reducing the remuneration of the works council chairman. If the employer reduces the compensation of the works council chairman, a works council committee has no right of co-determination.

1. FACTS

Großfabrik Mannheim AG (GKM) runs a business in Mannheim with around 500 employees and 60 trainees. There is an eleven-member works council at the Mannheim location. The works council chairman (a long-time employee of GKM) had been a works council member since 1994 and was exempt from work from 1998 due to his work council activities.

Until he was released, he worked as a locksmith and was classified and remunerated according to the in-house collective agreement at GKM AG. In March 2002 he took over as chairman of the works council. Since 2006 he has been listed and paid as a non-tariff employee. In March 2011 he was also given a company car for private use.

In June 2022, GKM AG reduced the works council chairman's remuneration and deprived him of his company car. In GKM AG's opinion, the remuneration should be determined on the basis of the remuneration development of those employees who were comparable to the works council chairman before he took office as a works council, i.e. who were grouped into the company collective agreement.

In the works council's view, however, the reduction in remuneration represents a regrouping within the meaning of the BetrVG. The committee initiated a resolution process 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 application.

2. DECISION

The State Labor Court (LAG) rejected the works council's complaint against this. Whether the reduction in remuneration was correct could remain 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. There is “only” an application of the law Section 37 Paragraph 4 Sentence 1 BetrVG before. This does not constitute a classification or regrouping Section 99 Paragraph 1 Sentence 1 BetrVG period.

Due to the exemption, the works council chairman does not carry out any activities that could be assessed in terms of classification or regrouping in the application of a relevant collective remuneration regulation. The determination of the comparison salary and the subsequent reduction in remuneration were based on a mere average calculation of the remuneration of suitable comparison employees.

Because of the fundamental importance of the question of the works council's right to co-determination, the LAG admitted the appeal to the Federal Labor Court.

3. CONCLUSION

The decision of the LAG Baden-Württemberg coincides with an earlier decision of the LAG Düsseldorf (decision of March 19.3.2019, 8 - 70 TaBV 18/XNUMX). It remains exciting to see whether the BAG will agree with the LAG's view - although in our view the legal situation is clear here. In any case, it is important for the company parties that when exempting them, they record exactly who is part of the comparison group and also define this when making changes to remuneration in order to avoid disputes about (criminal) discrimination or favoritism for exempt works council members.