Works Agreements
What formal requirement generally applies to a works agreement?
It must be in writing and signed by both parties on the same document.
Which provision governs the beginning and end of daily working time, including breaks?
§ 87(1) no. 2 BetrVG.
Which provision covers technical devices designed to monitor employees’ behaviour or performance?
§ 87(1) no. 6 BetrVG.
Does the Works Council co-determine the amount of pay under § 87(1) no. 4 BetrVG?
It co-determines the time, place and form of payment, not the amount.
Which right does the Works Council NOT have concerning remote work?
It has no right of initiative regarding whether mobile work is introduced.
Which body normally has competence to conclude a works agreement for one establishment?
The local Works Council.
Does the Works Council co-determine the length of the weekly working time?
Generally no. It co-determines distribution, not the duration of weekly working time.
What does § 87(1) no. 6 BetrVG require in terms of the intended use of the system?
Intent to monitor is not required. Objective suitability of the system for monitoring is sufficient.
Name two matters covered by § 87(1) no. 4 BetrVG.
For example, the payment date, payment interval, place of payment or cash/cashless form of payment.
Which provision gives the Works Council co-determination rights regarding general holiday principles and holiday schedules?
§ 87(1) no. 5 BetrVG.
The employer is bound by a collective agreement that comprehensively regulates shift premiums. Can the Works Council nevertheless conclude a works agreement on the same premiums under § 87(1) no. 10 BetrVG?
Generally no, where the collective agreement applies directly and mandatorily and regulates the matter conclusively. Exception: if the collective agreement is in the Nachwirkung stage.
Almost all employees regularly work beyond their scheduled hours. Management does not expressly order this but knows about it and accepts the additional work. Is co-determination triggered?
Yes, as there is a collective element. Co-determination under § 87(1) no. 3 BetrVG covers not only ordered overtime but also overtime tolerated by the employer.
Employees use headsets solely to communicate with colleagues. No calls, performance figures or activity data are recorded. Is § 87(1) no. 6 BetrVG triggered?
No. Without technical collection and recording of behaviour or performance data, the headset is not a monitoring device within the meaning of the provision.
The employer introduces a new bonus scheme but keeps the total bonus budget unchanged. It changes the criteria so that customer ratings count more heavily than sales figures. Is this co-determined?
Yes. The total budget is not co-determined, but the abstract criteria and procedures for determining individual remuneration are remuneration principles under § 87(1) no. 10 BetrVG.
The employer directs employees to follow a precise sequence of work steps when serving customers. Does this concern the “order of the establishment” under § 87(1) no. 1 BetrVG?
No. A direction that immediately specifies how contractual work must be performed concerns work behaviour, not co-determined order behaviour.
A company-wide IT policy is necessary because local works councils cannot regulate a central cloud platform consistently. Is the Group Works Council automatically competent because a uniform solution would be convenient?
No. Mere convenience is insufficient. Competence requires a compelling need for a cross-establishment regulation or objective impossibility of separate local regulation.
A works agreement introduces flexitime but contains no cap for positive or negative time balances and no rule on how balances are settled. Which co-determination issue is missing?
The Works Council co-determines the maximum balance, the settlement period and the circumstances in which credits are paid out, carried over or forfeited.
A software tool automatically records login times, task completion rates and error rates. The employer states that it will never use the data for performance monitoring. Does § 87(1) no. 6 BetrVG apply?
Yes. It is sufficient that the system is objectively capable of collecting and recording behavioural or performance data. The employer’s subjective monitoring intention is irrelevant.
A collective agreement fixes a night-work premium at 25% but permits company-level rules on the distribution of night shifts. What remains open for a works agreement or conciliation committee award?
The distribution and scheduling of night shifts may remain open, but the fixed premium may not be changed. The collective agreement excludes co-determination only to the extent that it regulates the matter mandatorily and conclusively.
The employer has discretion under occupational safety legislation to choose between several methods of risk assessment. Does the Works Council co-determine the assessment itself and/or its timing?
It co-determines the rules and method for conducting the risk assessment, but generally not the date on which it is carried out.
A works agreement on shift planning allows the employer to make unilateral roster changes if objectively defined conditions are met, for example an unforeseeable absence rate above 20%. Is such a clause necessarily invalid because it permits unilateral employer action?
No. A works agreement may grant the employer defined decision-making powers, provided the Works Council’s co-determination right is not deprived of its substance and the conditions are sufficiently regulated.
On Friday afternoon, the employer unilaterally orders weekend work because a large order unexpectedly arrives. It announces that the Works Council will be involved on Monday. Is the order effective under works constitution law?
No. In social matters under § 87(1) BetrVG, the employer may not implement even a provisional unilateral arrangement before consent or replacement of consent. A genuine emergency is construed narrowly and cannot be based on a recurring planning failure
A public-facing platform allows customers to post comments naming individual employees. The employer argues that it neither writes nor moderates the comments. Is the platform outside § 87(1) no. 6 BetrVG for that reason?
No. A technical system can trigger co-determination where it enables employee-related performance or behaviour information to be technically collected, stored and later reviewed, even if the data originate from third parties.
The employer reduces every employee’s voluntary over-tariff allowance by the same amount after a collective pay increase. Does the Works Council co-determine?
Usually not, if the reduction is genuinely uniform and merely implements a reserved offsetting right. Co-determination is triggered if the employer redesigns the internal remuneration structure or distributes the burden according to new differentiating criteria.
The employer decides that mobile work will be available for two days per week. It then unilaterally determines that employees must be online from 9:00 a.m. to 5:00 p.m., install tracking software and work from a private room. Which parts are subject to co-determination and under which nos. of § 87 BetrVG?
The decision whether to offer mobile work is generally entrepreneurial. However, the detailed arrangement may trigger co-determination concerning working time, monitoring technology, occupational health and safety, and the design of mobile work under § 87(1) nos. 2, 6, 7 and 14 BetrVG.