Permanent Data Access for Local Works Councils? Cologne Regional Labour Court Sets Limits

The central works council has no all-encompassing right to enforce the rights of local works councils arising from a group works agreement. Where there is no effective delegation by the local works councils, the decisive question is whether the matter can objectively be regulated at the local operational level.

Facts

Two employers operate several joint establishments and use a shared digital time-recording system. This system records the working hours of all employees – but also the reasons for absence, such as illness or maternity leave. The employers have a total of 20 locations, each with its own works council. In addition, there is a central works council responsible for matters spanning multiple locations. In 2018, the employers concluded a works agreement with the central works council, granting the individual works councils permanent electronic read access to employees’ time-recording data. The works councils could view at any time when employees had worked and whether they were ill or on maternity leave.

A local works council used this data access to create an Excel spreadsheet listing all employees’ sick days. This file was stored unencrypted on an internal drive – a clear breach of data protection requirements. The data protection officer responded and demanded that the works councils’ permanent access to the time-recording system be revoked immediately. The employers implemented this demand and blocked the local works councils’ access.

The central works council then demanded that the employers restore the electronic access rights for the local works councils, as had been provided for in the group works agreement.

The Decision of the Cologne Regional Labour Court

The Cologne Regional Labour Court (Landesarbeitsgericht Köln) rejected the central works council’s claim. The reasoning comprises two aspects.

The central works council was not competent. Granting the access rights was not subject to the central works council’s original co-determination right. The central works council only has jurisdiction over matters that cannot be regulated at the level of the individual establishment. Alternatively, in the absence of original jurisdiction, it would have needed to be duly authorized by the local works councils.

Where the central works council concludes a group works agreement with the employer within its original jurisdiction, it is in principle entitled, in its own right, to demand implementation of that group works agreement. The introduction of the time-recording system at issue here was meant to be implemented and administered uniformly across all establishments, so that an arrangement with the central works council was required. According to the court, however, this does not establish an all-encompassing jurisdiction of the central works council to regulate all related questions. The central works council is not superior to the local works councils, but only has jurisdiction where a matter cannot be regulated at the local level.

Any electronic access right of the works council is governed by Section 80(1) of the German Works Constitution Act (Betriebsverfassungsgesetz, “BetrVG”) (monitoring compliance with statutes – here, among others, the Working Hours Act). It is not governed by the co-determination right under Section 87 BetrVG. According to the Cologne Regional Labour Court, granting read access is not covered by the co-determination requirement of Section 87(1) No. 6 BetrVG (introduction and use of technical equipment designed to monitor the conduct or performance of employees).

A local works council is itself best placed to decide whether and how it performs its monitoring duties under Section 80 BetrVG. There is no need for a uniform arrangement spanning multiple establishments. No delegation of the right from the local works councils to the central works council had taken place. The question of how a works council performs its monitoring duties and what information it receives from the employer for that purpose falls within the responsibilities of the respective local works council. The central works council may therefore not regulate these rights without express authorization from the individual works councils. Accordingly, the central works council also has no corresponding right to demand implementation.

The Regional Labour Court further stated that enforcing a permanent access right for the local works councils would also have entailed obligations. The respective local works council would have to ensure that data protection requirements are complied with and take appropriate measures. This represents a significant responsibility accompanied by corresponding obligations.

Data protection precludes permanent read access. The court found that permanent electronic access to sensitive employee data is likewise incompatible with data protection requirements. A permanent means of access is not necessary.

The works council’s right to be informed under Section 80(2) BetrVG does not give works councils a statutory entitlement to permanent electronic access to working-time data. Permanent read access without a specific occasion goes beyond what works councils actually need in order to perform their statutory duties. Employers are also entitled to review information before disclosing it and, where appropriate, to remove data that is not relevant.

The time-recording system at issue here also contained specially protected health information, such as absences due to illness. The interests of the employees affected here are more deserving of protection and carry greater weight than any (permanent) interest the works councils may have in obtaining information.

Practice Tip

In data protection matters, the principle of data minimization must always be observed. Permanent access to a large volume of personal data is not necessary when one considers the works council’s actual duties. The handling of employee data must be limited to the minimum required. Such handling entails not only rights, but also obligations and responsibility.

When examining the central works council’s jurisdiction, the question to ask is whether the matter in question objectively cannot be regulated at the local establishment level.