Berlin After the sensational judgment of the Federal Court of Justice (BGH) on the remuneration of works councils, the first companies have reduced the salaries of employee representatives. Those affected are fighting back in court – and are now being backed by IG Metall and a former judge at the Federal Labor Court.
“It would be good if the unions supported the works council members on their way through the instances until the far too restrictive case law of the Federal Court of Justice was corrected,” Klaus Bepler, who headed the Fourth Senate of the Federal Labor Court from 2005 to 2012, told the Handelsblatt.
In January, the BGH overturned the acquittals for four VW managers. They were accused of disloyalty because they are said to have granted senior employee representatives, including the then head of the works council Bernd Osterloh, unreasonably high salaries and bonuses between 2011 and 2016.
The Karlsruhe judges overturned the principle accepted in labor courts that works council remuneration may also be based on a “hypothetical career”. Instead, the remuneration of the employee representatives “should be measured according to the remuneration of comparable employees with developments customary in the company”, the BGH ruled.
Using the example of the trained industrial clerk in Osterloh, this means that he should only have been paid like an industrial clerk, although as a powerful head of the works council he acted on an equal footing with the management and was even then traded for board positions.
IG Metall declares support for works councils
After the BGH ruling, VW board members cut the salaries of works council members at several locations out of concern about making themselves liable to prosecution. On the other hand, several lawsuits are already pending, for example in Hanover and Braunschweig.
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Should the legal opinion of the Federal Court of Justice prevail, Bepler sees the danger that what he believes to be “an almost exemplary practiced works constitution will no longer work because qualified employees are no longer interested in the works council office”.
IG Metall boss Jörg Hofmann is also hoping for a correction. The BGH judgment does not bring any clarity, he told the Handelsblatt. “So the IG Metall accompanies the colleagues on the way to clarifying this.” Works councils that defend themselves against salary cuts in court could, like all members, make use of the legal protection of the union.
As a works councillor, the trained industrial clerk was on an equal footing with the management.
(Photo: imago images/Susanne Hübner)
The works council job is actually an unpaid honorary position. However, the employee representatives must of course have an income. However, the Works Constitution Act says nothing about the amount of remuneration.
It only regulates that works councils may not be disadvantaged or favored because of their activities. The labor courts right up to the Federal Labor Court have so far derived greater leeway in payment from this legislative vagueness than the Federal Court of Justice did recently.
Traffic light coalition does not want to tackle the issue
Bepler hopes that his interpretation of the law will be corrected again. The main aim of the ban on preferential treatment in the Works Constitution Act is to prevent so-called “yellow” works councils, which act more in the interests of the employer than the employee.
The supervisory authority to prevent this is in particular the responsible trade union. In the case of VW, however, neither IG Metall nor the general meeting responsible for control from another direction complained about the remuneration of the works council. Employees also have the option of voting out members who do not feel well represented in works council elections.
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Legal certainty could bring legal clarification. But according to their coalition agreement, the SPD, Greens and FDP do not want to tackle the issue. Bepler fears that the employers’ associations would also have a hard time agreeing to a new remuneration regulation in the Works Constitution Act. Because they have many smaller companies in their ranks, which – in his view, wrongly – fear that the work of the works council will become more expensive in principle.
The former Federal Labor Judge sees the danger that the quality of the work of the works council could suffer after the judgment of the Federal Court of Justice. Particularly qualified employees often aim to pursue a career that matches their talent. However, this is hardly possible as an exempt works council if successful work for the employees or completed further training cannot pay off in the end.
“For a successful participation by the representatives of the employees and in their interest, particularly qualified works council members are needed, because such people do not limit themselves to a ‘no’ out of sheer fear of something new, strangers,” said Bepler. Such members of the works council are adequate negotiating partners for the management, who can contribute to the content of a design process and participate in it in the interests of the employees.
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