Creating a works council (Betriebsrat)

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I have previously worked for German companies that have had a Betriebsrat. My present company does not have one, although we have 8000 employees! On the whole it is a happy situation. We are now coming together with another company that does have said Betriebsrat. With the joining of the two companies, the Betriebsrat will remain in place for those covered by the joining companies contracts, the rest of us stay as a we are. We do have a few people though who want and of course can have a regional Betriebsrat's. I work in an off site arm of the company. We are 20 or so employees and around 5 or 6 employees want a Betriebsrat and under the rules they can. However can anyone answer the following questions.

 

1. If you disagrees and do not want to be part of the Betriebsrat can you opt out?

2. Will those who do not want to be part of it (around half are set against it) and by extension did not vote for it be subject to any decisions made by it?

3. Although I have read this http://bundesrecht.juris.de/betrvg/index.html, I can find no reference to the above questions.

 

Thanks in advance with any help..

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1) No, it covers the entire company, although the rules are complex if the company is formed of many sub-entities with remote offices etc.

2) Yes, you are all bound by it once it exists.

3) Pleasure, but do remember the rules are complex and have many exceptions so if it really matters to you get professional help.

 

Remember that a Betriebsrat is not an end in itself, just the means, and it is only as good as the people who are on it. If employees of a company that size stand up and say they want to form one then you cannot stop them, other than asking them nicely not to. If they go ahead anyway then the best thing to do is join in.

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So what you are saying is that 5 or 6 people can enforce their collective will over the remaining 15 or so.

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Essentially yes, although the rules do change depending on the size of the company. It is also not easy to define what your 'company' is as most large organisations are made up of many entities which may or may not be counted together for a Betriebsrat. Once your organisation goes above 100 then if a handful of people decide they want a BR then there is nothing anyone can do to stop them beyond asking them nicely not to.

 

Once the Betreibsrat exists the management is obliged to negotiate with it and cannot have separate negotiations with individuals about topics that concern the Betriebsrat. That sounds rather more draconian than it actually is - your pay, for example, will still in practice be negotiated between you and your manager but the Betriebsrat will have to approve the agreement. They do not necessarily do this sort of negotiating for you, although they can assist if asked to, they are more concerned with decisions that affect everyone - hiring and firing being the most commmon, or changes to working times & practices such as overtime being also big areas of interest.

 

You must understand that the Betriebsrat rules are written with wholly dysfunctional companies in mind where the managment/staff relationship has collapsed and the company is in crisis. When applied to small companies where everyone is friends they appear somewhat bizarre but in the end the Betriebsrat is not automatically an evil, destructive and interfering body.

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HellesAngel, many , many thanks for your answers. You have shed light onto an area that my German friends could not answer and where my co-workers had no idea. It may sound strange that a company with 8000 employees has no Betriebsrat, but in honesty, we have never needed one. I work for a very open company. The people who are now making waves are people who have worked for other companies who have had one and cannot get it into their collective heads that we are happy without. Looks like things are going to change. Sadly, for the worst as they want to model themselves on the Betriebsrat of the joining company and that is an organisation who's ethos is big money small work. Oh well, it was nice whist it lasted. Again many thanks.

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Happy to help - You should also understand the process of creation of a BR and how it can be made to work for you: The first step is simply an official announcement that a BR will be formed, then comes the official list of candidates, then comes an election to the BR. This whole process normally takes several weeks and is absolutely defined in every detail in the law. This must be followed to the letter. At a pinch I could find you the relevant regulations but if you search for Betriebsverfassungsgesetz or similar then you should find it, perhaps even in English. Something like this site may help.

 

In your postion you can simply put yourself and your 'friendly' colleagues up for election and have yourselves elected to the BR, that way you get a representative BR who will do what the majority want. There is absolutely no reason to allow some new upstarts to enter the company and form their own BR as you say the old guard are in the majority you'll have no trouble with the voting. If they insist on creating a BR then you can't stop them but you can create a BR that is representative of the majority's wishes and that means simply getting involved.

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You must understand that the Betriebsrat rules are written with wholly dysfunctional companies in mind where the managment/staff relationship has collapsed and the company is in crisis. When applied to small companies where everyone is friends they appear somewhat bizarre but in the end the Betriebsrat is not automatically an evil, destructive and interfering body.

 

If you have the misfortune to work for a draconian company, a BR may be an essential tool in making life liveable. The only caveat to that is that the sort of person who likes to be in a BR tends to be either a) those looking for a cushy number or B) those who really wish they worked for a draconian company they could fight against. If you get a load of b)s they can do damage in a company where everyone is genuinely friends.

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You can find additional information on the formation of a Betriebsrat in the Betriebsverfassungsgesetz starting from § 7. § 17 in particular covers the formation of a Betriebsrat in a company without an exising Betriebsrat.

 

I am pretty sure that any trade union will be eager to assist you, too. Just keep in mind tough, that employees running for a Betriebsratselection with a temporary work contract risk not getting a renewal or a permanent work contract. Having a permanent work contract is no requirement though.

 

There are several training companies specialising in Betriebsrats training like ifb or proko. A company is required to pay for these trainings for elected Betriebsratsmembers.

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The people who are now making waves are people who have worked for other companies who have had one and cannot get it into their collective heads that we are happy without.

Perhaps not.

 

If you're on a Betriebsrat or stand for election to one, you get a lot of personal employment protection. Basically, you are pretty hard to sack.

So what's good for you or your company may have absolutely nothing to do with it.

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The thing is: A Betriebsrat often is seen as a kind of nuisance while times are more or less good. Also the Betriebsrats fixation on disallowing Überstunden etc. is often not understood by people. But if there is trouble ahead, you will be happy to have a Betriebsrat - because only in this case employees will get certain rights. So when lay-offs loom or the company is about to be sold, the Betriebsrat has got a lot of ways to influence the process - if you don't have a Betriebsrat you are completely in the hands of the owners of the company. And when the going gets tough, chances are, that the open and friendly atmosphere between employer and employees will be the first thing that goes down the drain.

 

In a nutshell: If you don't have a Betriebsrat, you are forgoing certain rights you have as an employee, because these rights are only applicable, if there is a Betriebsrat in the company.

 

So I can only echo, what HellesAngel said: If you don't like the people who want to found the Betriebsrat, run for office yourself. Yes, it's kind of annoying and means work - but it also gives you a few privileges and the opportunity to shape the work of the Betriebsrat to your liking.

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So what you are saying is that 5 or 6 people can enforce their collective will over the remaining 15 or so.

 

yes, this is what happened to our company several years ago. the campaign to create one was spearheaded by 2 or 3 colleagues only. there are more than 10,000 of us in germany. considering the events of the last several years, a majority are now glad to have one (although initially they were very, very reluctant).

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Also the Betriebsrats fixation on disallowing Überstunden etc. is often not understood by people.

 

Just to be clear this type of reaction is almost entirely at the discretion of the works council members, otherwise I agree with your post.

 

The Betriebsrat is more or less obliged to ensure the law is followed and that records of overtime are kept (eg. in case a staff member becomes ill and sues the company for excessive working), and weekend overtime is especially restricted, but has no obligation to always prevent overtime. If it is doing so then it is often because overtime (something the company wants) is being used as a negotiating tool against the management - ie. we'll prevent your staff from working overtime until you give us xyz. This is annoying for the staff who may want to work extra to get extra money but are being used as pawns in someone else's battle, and perhaps the sign of either a problematic management/betriebsrat relationship or an overly aggressive Betriebsrat. This sort of blocking tactic is a primary weapon of a Betriebsrat.

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Thank you for all the replies, very informative and helpful.

 

As to the remarks on overtime ban by most betriebsrat, the irony here is, and I would rather not say who I work for, but if overtime was required and not authorised, the first people to complain would be those posting comment here ;)

 

Again thanks for the input.

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The other day I was catching up with some old BBC podcasts and there was an English guy, David Haynes, who was a CEO of Grohe, a medium sized very successful, German company who said that in his experience the Betriebsrat was one of the reasons for Germany's economic success as it was a positive forum for staff/company discussions and mediation, in contrast or in addition to the unions. He did say that he wouldn't necessarily have created employment law the way it is but it can be made to work well, providing scrutiny and balance to company decisions that ultimately leads to the decisions being better accepted by the workforce, and also he said Kurzarbeit that the German government brought in helped a great deal.

 

Now I've heard a few things said about Betriebsrats before but that they can contribute so directly to economic success was a new one, indeed the CBI in the UK often hold up 'inflexible' working practices in Europe, ie. any sort of employment protection & employees' rights, as one of the primary factors restricting Europe's success and economic growth. With the current reversal of growth figures, ie. the UK going backwards while Germany storms ahead, I guess the boot is on the other foot and such opinions about Germany's employment law get a better press.

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Perhaps not.

 

If you're on a Betriebsrat or stand for election to one, you get a lot of personal employment protection. Basically, you are pretty hard to sack.

So what's good for you or your company may have absolutely nothing to do with it.

 

I was on the 'Vorstand' of a Betriebsrat some years ago and this one of the areas that although was a good idea it can be, and will be abused. I know of people who have stood for the Betriebsrat and have successfully been elected using this as a way not to get sacked. The Betriebsrat, when properly run, can be very good employee-employer negotiating tool in particular the points already raised, hiring and firing and working hours. The Betriebsrat has no bargaining powers in regards to wage raises unless it is associated with an union.

 

As already suggested the Betriebsvefassungsgesetz is required reading along with Arbeitsrechtgesetz and the Mitbestimmungsgesetz (if you have more than 2000 employees.)

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It may sound strange that a company with 8000 employees has no Betriebsrat, but in honesty, we have never needed one. I work for a very open company ...

Yeah so did we, or so we thought until 300 people were fired on the whim of the management.

 

Step up to the line, if this group want a Betriebsrat, have a proper election and GET ONE.

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You should also be aware that there is an accelerated formation process available in the law to allow for fast creation of a Betriebsrat when something like that happens. I have no direct experience with this process but in a previous company we used the existance of this possibility as a reason not to create a Betriebsrat but adopt a 'wait and see' approach to our new management.

 

This wait and see approach is, with hindsight, not necessarily a course of action I would advise as the employment laws are very complex and forming a Betirebsrat is but one single, small step to creating a functioning, responsible, effective and representative group who can successfully argue with management and represent employees' rights in potentially unforseen, fast changing and difficult circumstances.

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Sorry, I am late to this thread, but for future readers of this post, there is an excellent book put out by C.H.Beck. - Employment & Labor Law in Germany (Stefan Lingemann, Robert von Steinau-Steinnrück and Anja Mengel authors). It contains a summary of the pertinent laws - in particular related to the Betriebsrat - in English and also a full (every paragraph)side-by-side listing of the German law with English translation. I have found it invaluable from a management perspective.

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Hi everyone,

 

sorry for starting up an old thread, but this is the best I found in the search.

 

I´m working for a big important company in Munich (more than 1.5k full time employees). This company (which I do not want to name) does not have a works council. I have been working there for almost three years, and in this time I have seen many many things where the company is taking advantage of employees. Please keep in mind, this is office work where everyone has a 40hr/wk contract. Some examples would be:

- Mobbing someone to quit because "You´re the only person that doesn´t work overtime in the team"

- Forcing people to work saturday/sundays without compensation

- Expecting employees to work from 8am-8pm, every day without compensation (€ or days off)

- Expecting/Forcing employees to "volunteer" to work during public holidays

 

I am luckily in a good team where I have an average of 45hr/wk (paid for a 40hr/wk, with no extra time off) with a "good" manager. However, I´m starting to play with the idea of founding a Betriebsrat. Goal of the Betriebsrat would basically be to count people´s hours, cap them at least the legal limit and enforce this legal limit even when people are working from home (via monitoring VPN access). Basically, I want the company to stop treating it´s employees illegally.

 

I have C2 German, however I still do not know how to start. I have already googled a bit and searched around, but does anyone have any information that could be of help? I know of at least 1 other collegue that would 100% be in it with me and know more than enough unhappy people who would also support this.

Thanks

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Working on Sundays or public holidays as an office worker is illegal in Germany.

 

Sonn- und Feiertagsruhe

§ 9 Sonn- und Feiertagsruhe

(1) Arbeitnehmer dürfen an Sonn- und gesetzlichen Feiertagen von 0 bis 24 Uhr nicht beschäftigt werden.

(2) In mehrschichtigen Betrieben mit regelmäßiger Tag- und Nachtschicht kann Beginn oder Ende der Sonnund

Feiertagsruhe um bis zu sechs Stunden vor- oder zurückverlegt werden, wenn für die auf den Beginn der

Ruhezeit folgenden 24 Stunden der Betrieb ruht.

(3) Für Kraftfahrer und Beifahrer kann der Beginn der 24stündigen Sonn- und Feiertagsruhe um bis zu zwei

Stunden vorverlegt werden.

 

See § 10 for exceptions.

 

http://www.google.de/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=0CCIQFjAA&url=http%3A%2F%2Fwww.gesetze-im-internet.de%2Fbundesrecht%2Farbzg%2Fgesamt.pdf&ei=wqsCVbLqO6WjyAOtn4CgBQ&usg=AFQjCNEUpv0Fcjz3nX_Rqa2OdHZ3aRaSNw&bvm=bv.88198703,d.bGQ

 

You definetely need inside help here. It might be a good idea to google companies in the same branch as yours and to make contact with their Betriebsrat.It is important that you do not do this alone, get your colleagues involved.

 

http://de.wikipedia.org/wiki/Liste_von_Gewerkschaften_in_Deutschland

 

Good luck and please keep us posted how things turn out.

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