Update Employment Law December 2020

Hamburg Regional Labour Court grants the works council an enforceable right of co-determination with the determination of personnel assessment figures/staffing ratios

Hamburg Regional Labour Court, resolution dated July 16, 2020 - 8 TaBV 8/19

Following a decision of the Hamburg Regional Labour Court, the works council has an enforceable right of co-determination with the definition of staffing ratios – in accordance with § 87 exp. 1 No. 7 BetrVG. The co-determination right aims at avoiding an otherwise health-endangering overloading of the personnel.


In a hospital in the north of Hamburg, talks between the works council and the hospital management about the assessment of occupational health risks and the measures to be derived from them took place repeatedly over several years. For this purpose, external experts were repeatedly present in the hospital to query the stress level of the employees by asking them. 

Finally, negotiations were held in a conciliation committee on the measures to be derived from the experts' findings to improve the health protection of employees. The works council was primarily concerned with setting minimum staff quotas per patient bed, while the employer side strictly rejected such a determination. However, the conciliation committee then decided to set such a minimum staffing quota. The hospital management immediately challenged the decision of the conciliation board at the Hamburg Labor Court and was victorious there; the Hamburg Labor Court found the decision of the conciliation board to be ineffective because it violated higher-ranking law. 


However, the works council's complaint against the first-instance decision was heard by the Hamburg Regional Labor Court; the Hamburg Regional Labor Court rejected the applications of the employers' side and considered the decision of the conciliation board to be effective. The Hamburg Higher Labor Court first pointed out that the contradictory decision of the Schleswig-Holstein Regional Labor Court (decision of April 25, 2018 - 6 TaBV 21/17) was incorrect in a comparable set of facts; even if the Federal Labor Court was no longer able to decide on the legal complaint (because it had dealt with it in another manner), it had in any case made it clear in its decision of November 19, 2019 (1 ABR 22/18) that the reasons used by the Schleswig-Holstein Regional Labor Court were not valid. The Regional Labor Court of Schleswig-Holstein had - with the probably prevailing opinion in the literature - taken the view that the setting of minimum staffing quotas was withdrawn from the works council's right of co-determination. On the one hand, the determination of the number of employees was the core area of entrepreneurial freedom of organization, in which the works council was not allowed to interfere with its enforceable co-determination rights. Beyond that it follows also from a systematic understanding of the § 92 BetrVG on the one hand and the § 87 exp. 1 No. 7 BetrVG on the other hand that the participation with the health prevention excludes the definition of minimum staffing ratios. § 92 BetrVG grants the works council during personnel planning only information and consulting rights and no enforceable participation rights. 

As a result the decision of the Regional Labour Court of Hamburg has to be rejected. The Works Constitution Act does indeed provide for a finely tuned catalog of information, consultation and genuine co-determination rights. The number of employees designated for the completion of a certain task can always - somehow - be seen in connection with the health protection of the workforce. The granting of a right of co-determination in the determination of employment rates would therefore probably result in § 92 BetrVG losing its own raison d'être. That however cannot be imputed to the legislator, who consciously provided the appropriate paragraphs in such a way - weighed and balanced - in the intensity of the participation rights of the works council,. Already in view of the organization of the job and the associated tension between § 90 BetrVG on the one hand (organization of the job) and the participation with the health protection (§ 87 BetrVG) on the other hand, the Federal Labour Court had already evaluated this in a whole set of decisions likewise. It has explicitly emphasized that an extensive interpretation of § 87 BetrVG must not lead to the result that the systematics of the Works Constitution Act become obsolete.

Moreover, the Works Constitution Act shows in its systematics that the essential economic decisions (with which headcount do I want to run the business?) are also withdrawn from the enforceable co-determination of the works council, §§ 111, 112 BetrVG. Here the core of the entrepreneurial freedom of organization, which is guaranteed by fundamental rights, is not only affected, but threatened in its core. A right of co-determination of the works council, which counteracts this evaluation, would run contrary to the entire legal system.

The Regional Labour Court of Hamburg is to be reproached besides that. It - with the examination of the discretionary decision of the conciliation board - completely ignored that this made such a far-reaching decision on basis of several years old information and without consideration of alternative options (for example delegation of administrative tasks of the medical personnel).

The Regional Labour Court of Hamburg left unconsidered moreover the circumstance that within the nursing sector, the legislator defined minimum staffing ratios, which were kept in the present case (for lack of explicit factual data is to be assumed of it). If however the legislator - by parliamentary resolution - intervenes into the entrepreneurial organization freedom only up to a certain degree, then it can be no longer permissible - by extensive interpretation of § 87 exp. 1 No. 7 BetrVG - that the works council qua codetermination right extends this legislative decision still and makes still stricter requirements for the hospitals. 

Practical tips

It has been observable for some time that the struggle for minimum staffing quotas is being fought in concerted action by works councils at the political level and at the union level (demands for collective bargaining agreements for staffing quotas) and at the company level. Employers who are approached accordingly by trade unions and works councils can only be advised to act with extreme caution; close legal monitoring of employer behavior in these matters is urgently recommended in order to avoid unnecessary errors in communication or even unnecessary decisions to the detriment of the employer. 

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