BAG, judgment of Apr. 9, 2019 – 1 ABR 30/17
The transfer of an employee after the loss of job to the care of an in-house "Job Service and Placement" unit constitutes a transfer requiring consent within the meaning of Sec. 99 para. 1 BetrVG [German works constitution act]. If the selection procedure is carried out by the parties pursuant to a framework agreement, the instruction in the approval procedure also covers the selection procedure.
The employer and the General Works Council concluded a framework agreement regarding the selection of employees who were affected or at least partially affected by a job elimination due to a reconciliation of interests. Taking into account established criteria, employees were selected by an equally-represented committee, which were assigned to the support of an in-house Job Service and Placement unit (JSP). There, employees should be cared for and supported in the search for other employment opportunities until they can be transferred to another job. The employees remained committed to temporary project assignments and qualification measures. In the case in question, after the implementation team determined that the employee's job had ceased to exist and selected the transfer to the JSP, the employer requested the Works Council’s approval upon the transfer of the employee. The works council refused.
After the German Labor Court rejected the employer's application for lack of proper instruction, the German state labor court (LAG) dismissed the employer's complaint on the grounds that the employee's transfer was not a transfer requiring co-determination. The German federal labor court (BAG) is of the opinion that the transfer of the employee into care of JSP represents a transfer in meaning of Sec. 99 para. 1 BetrVG. Moreover, the hearing of the Works Council was not duly executed. On these grounds, the complaint of the Works Council against the decision of the LAG was successful.
From the perspective of the BAG, a transfer occurs if the entire scope of the employee's tasks has changed so much that the new tasks are now to be regarded as "different" from the point of view of an observer familiar with the operational situation. However, granting an employee garden leave during the termination period, is not a transfer in meaning of the provision (see BAG of Nov. 8, 2016 - 1 ABR 56/14). Since the employee in the present case gives up his previous tasks and the new task is to actively participate in the transfer and to carry out temporary project assignments upon request, from the perspective of the BAG, the task has changed and represents something "different". The work duties are not permanently suspended, so it is a transfer subject to approval.
Due to the instruction, the Works Council must be in a position to check whether one of the grounds for refusal of consent mentioned in Sec. 99 para. 2 BetrVG exists (see BAG of March 13, 2013 - 7 ABR 39/11). As the Framework Agreement between the employer and the General Works Council on the selection procedure is a directive within the meaning of Sec. 95 para. 1 (1) in conjunction with Sec. 99 para. 2 no. 2 BetrVG, and therefore a violation of the selection guideline to refuse consent is authorized, the Works Council must be in a position to check whether the requirements of the selection procedure have been complied with. In the present case, the Works Council was not provided with sufficient information to check whether the requirements of the selection procedure had been complied with.
With this decision, the BAG emphasizes the rights of the Works Council in the context of individual personnel measures. Fortunately, the BAG continues to not qualify an outplacement as well as short-term qualification units lasting less than one month as a transfer within the meaning of Sec. 95 BetrVG. However, if it concerns a personnel individual measure, it may not be carried out without the consent of the Works Council. The employee may not accept the changed tasks; even if - as in the present case - the previous job ceases to exist.
In the case of uncertainty about the existence of a personnel individual measure, a precautionary approval procedure may be recommended. Should a quick solution without the approval of the Works Council be urgently required, the personnel individual measure pursuant to Sec. 100 BetrVG can first be carried out provisionally. If the Works Council refuses to approve the provisional implementation, the employer must request the replacement of the approval by court. During the approval replacement procedure, the employer can carry out the action unaffected thereof, and this will often be resolved in the course of the procedure through the passage of time.