Fisher, Paul / Works councils in Germany
Codetermination, pp. 39-41 PDF (1.5 MB)
- 39 - CCDE T'i2LINA TION 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" or 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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