Beautiful New World of Work
The next-generation of digital natives wants more, and wants things different, but above all they want flexibility. Work is understood as without limits. Concepts like nine-to-five, the same desk until retirement and the clear separation between »I« the employee and »you« as employer are outdated and collide with the self-image of founders and modern employees, who think in terms of innovation. We are discussing making the Working Time Act more flexible because we want to work affectively, i.e. according to need, and no longer statically according to closing times or rest periods in an office. The focus is on agility and the elimination of management structures: self-organized teams take responsibility for managing large projects on their own (shared leadership). The beach is regarded as the office of the future and the Skype meeting as its (not so) silent servant. Well-educated digital nomads code from Chiang Mai and Tallin or between the changing table and yoga mat, exactly when the appropriate time window has opened for them. The emerging working world 4.0 makes many things possible.
However, works councils cannot participate in this exponential development because the Works Constitution Act ignores cooperation using modern means of communication.
The Works Constitution Act as #digitalbrake: An Analysis of the Situation
To begin with, the election of the works council cannot be carried out online, because works council elections must be implemented within the framework of a tight corset of strictly formal election regulations. The basic legislative idea here is that a works council election should take place through the submission of ballot papers in ballot envelopes to a ballot box. There is no room for digitization of this process under existing law. In particular, the participation of employees who are not present is only possible by postal vote. In February 2018, the Hamburg Regional Labor Court effectively ruled that an election held in a different way can be contested.
Meetings of the works council must also be held analogously. The legal literature is (almost) unanimous on this point: in particular, meetings via video conferencing are not permitted. According to §30 (1)(4) of the Works Constitution Act, the meetings of the work council are not public. The purpose of this non-public imperative, which has existed since 1920, is to enable an impartial discussion among works council members and decision-making without outside influence. There is at least the (theoretical) danger that this non-public requirement will be violated during a video conference. After all, unauthorized third parties could listen in and exert influence on the respective works council member.
Furthermore, even a works council decision taken by video conference cannot be considered valid. This is because resolutions of the works council require the physical presence of the members in the same meeting room. One (i.e. a jurist) can conclude this from the wording of the law (»present« in § 33 (1)(1) of the Works Constitution Act, which has essentially remained unchanged since 1952). It is precisely this »simultaneous physical presence« of all works council members in a meeting room that is not fulfilled by a video conference. Or even by a phone call.
And finally, works meetings – i.e. the meeting of all employees of a shop – are also subject to the non-public requirement, such that the above applies in the same way.
This analysis of the basic legislative idea is also supported by the amendment to the European Works Council Act, which came into force in 2017: this now contains special regulations for members of a European works council on a seagoing ship who are on the high seas or in another country at the time of the works council meeting (and exclusively to them!). In such a constellation, it is possible to participate in the meeting of this body by means of modern information and communication technologies. The amendment shows above all one thing: legislators have recognized the digital problem. Nevertheless, the use of modern means of communication is still severely restricted. It must be concluded from this that the intention was to maintain the status quo.
This is untenable. Courageous legislative initiative is necessary! Furthermore, at least the interpretation of the »principle of non-publicity« must be transferred into the #digitalage: A (legal) view that makes it completely impossible for works council decisions to be taken using modern means of communication is simply backward.
Until then: employers and works councils should work together to develop digital concepts of collaboration and thus pull the #digitalhandbrake. For example, it would be possible to use modern means of communication to prepare works council decisions so that only »present« members could take the decision. A digital meeting hour for the works council is also conceivable in principle. Ultimately, works councils should above all approach the digital age within the framework of their rules of procedure. But only to the extent permitted by current law, of course.