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Fisher, Paul / Works councils in Germany

Codetermination,   pp. 39-41 PDF (1.5 MB)

Page 39

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Personnel Codetermination
Traditionally, German labor law distinguishes between personnel,
social, and economic codetermination.   The term codetermination
implies that actions which formerly were taken unilaterally by the
employer should be arrived at by agreement between labor and capital.
The various laws differ as to the procedure to be followed in cases
where agreement cannot be reached. They also differ as to the extent
and the spheres of codetermination. In personnel matters, most
laws provide for a works council veto against the hiring, transfer,
promotion, and discharge of employees. In Hesse, the final decision
in the first three types of cases is made by an arbitration board
and in dismissal cases by the labor courts. In most laws, the works
council veto has a staying effect except in emergencies. ]/ To
give the works council a chance for taking a stand, it must be informed
in advance of the hiring, transfer, etc., decision.
The works council veto in discharge cases was already provided
for in the Weimar law. It represents probably one of the most important
activities which the law assigned to this institution. To protect the
job under all circumstances is the prevailing desire of the German
worker. As a consequence, works council action is provided also in
many special state laws regulating individual and mass discharges.
In most of these laws, works council consent or its opinion is a
prerequisite for a valid termination of the employment contract. /
The 1920 W'orks Council Law merely suggested a certain degree
of works council influence upon hiring, transfers, and promotions.
Veto by the works council in these cases is a novel feature of the
State laws following the allied victory. In practice the works councils
rarely veto transfers and promotions.   Objections to hirings were
based largely upon the applicant's political past, particularly his
activities during the Nazi period (and, in West Berlin, upon membership
in the Communist party). Since the laws prohibit the exercise of the
veto for political reasons, the objection was usually ascribed to the
likelihood that the applicant would "endanger the social peace"
that his joining the company would "not be in the best interest of
the enterprise." Vetos against hiring will therefore probably diminish
in the future when the political behavior of the applicants will no
longer provide grounds for rejection. The burden of proof of a
2/ In South Baden the employer may hire an employee for a trial
period only if the works council has vetoed his action.
/ According to the Bavarian law for the protection of dischargees
(Kuendigungsschutzgesetz para. 2, 3), works council consent to a
discharge bars a workers suit for revocation of the dismissal.
Here the works council settles the issue finally against the
worker. cf. Decision of the Munich labor court of April 29, 1949,
A.P. 50, p. 65. Similar provisions exist in Rhineland-Palatinate
and Wuerttemberg-Hohenzollern.

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