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Facts Relevant to Co-Determination

Facts Relevant to Co-Determination 

When introducing and applying data-processing systems, various facts relevant to co-determination need to be taken into consideration:

§ 85 (1) No. 2 [Order to perform extra work or to work overtime (Anordnung von Mehrarbeit und Überstunden)]

§ 85 (1) No. 12 [Workplace Design (Arbeitsplatzgestaltung)]

§ 85 (1) No. 13 [Technical Facilities (Technische Einrichtungen)]

§ 85 (2) No. 1 [General Issues Concerning the Further Training of Employees (Allgemeine Fragen der Fortbildung der Dienstkräfte)]

§ 85 (2) No. 3 [Conducting Further Training Courses for Employees (Durchführung der Fortbildung der Dienstkräfte)]

§ 85 (2) No. 2 [Improvement of Work Performance and Work Flow (Verbesserung von Arbeitsleistung und Arbeitsablauf)]

§ 85 (2) No. 8 [Automated Processing of Personal Data (Automatisierte Verarbeitung personenbezogener Daten)]

§ 85 (2) No. 9 [Introduction, Modification, Extension of New Working Methods (Einführung, Änderung, Ausweitung neuer Arbeitsmethoden)]

§ 85 (2) No. 10 [In-house Information and Communication Networks (Betriebliche Informations- und Kommunikationsnetze)]

§ 90 No. 3 [Participation in the Introduction of Fundamentally New Working Methods, etc. (Mitwirkung bei der Einführung grundlegend neuer Arbeitsmethoden etc.)]



§ 85 (1) No. 2 [Order to Perform Extra Work or to Work Overtime]



Extra work means any work done in excess of the maximum regular working hours as laid down by law.  Overtime means any work done in excess of the regular working hours as collectively agreed.
The co-determination right of the staff council extends to orders relating to the entire office, parts of the office or certain working groups.  The co-determination right exists with regard to the issues as to whether or not extra work or overtime should be ordered, how such extra work or overtime should be spread over the weekdays and how it should be compensated by time off.



§ 85 (1) No. 12 [Workplace Design]



In this context, the personnel representatives are responsible for ensuring that the employees' legitimate interests are safeguarded.  The workplace design should comply with assured ergonomic knowledge.  Workplace design is the manner in which individual workplaces are designed in terms of the layout of equipment and machines in consideration of the effects of the workplace environment, such as noise, temperature, light, odour, etc.  This also includes that workplaces are equipped functionally with adequate furniture.

The participation right concerns all workplaces, including those which have been newly created.  It also relates to any modification or rearrangement of a workplace.  It extents to the design only but not to the decision as to whether or not a workplace should be created or which work is done there.  The co-determination right is triggered at the moment when the office is planning or initiating measures with respect to the workplace.



§ 85 (1) No. 13 [Technical Facilities]



The provision serves the legal protection of the individual employee's personality against anonymous monitoring facilities as these allow to severely intrude upon an employee's privacy without the person concerned noticing or being able to influence such intrusion.  The staff council has a duty to protect the rights of all employees in this regard. 

In this context, the co-determination right takes effect even if the technical facilities are only abstractly able to be used for monitoring employees or to store, process, or evaluate data that can be traced back to the person to whom such data relate.



§ 85 (2) No. 1 [General Issues Concerning the Further Training of Employees]



The co-determination right includes primarily issues of further education policies.  This means that the personnel representatives may influence the formulation of the principles generally applicable to further training.  Apart from the determination of further training courses to be taken into consideration, this includes the selection of the required installations.  Furthermore, general provisions regarding eligibility, including participation conditions (e.g. payment of travel expenses, fees, provision of teaching aids), as well as the type and scope of the courses to be held.  This also includes principles regarding time off for further training and taking account of a person's participation in further training when preparing the work schedule.

In this context, the personnel representatives are primarily responsible for ensuring an equality of chances among all employees.



§ 85 (2) No. 2 [Improvement of Work Performance and Work Flow]



This co-determination right partly overlaps with the co-determination rights concerning the workplace design, pursuant to paragraph 1, no. 12, and the installation and application of technical facilities designed to monitor the behaviour and performance of the employees, paragraph 1, no. 13 (cf. above).
The purpose of co-determination is not limited to ensuring that assured ergonomic knowledge regarding humane working conditions is applied when designing workplaces, but it also extends to protecting employees from overburdening and overloading as well as overtaxing.  Within the scope of its co-determination right, the staff council has to ensure that employees are not exposed to any unreasonable or unjustified adversities.

The co-determination right takes effect upon submission of a detailed explanation to be drawn up in each individual case stating which organisational measure exactly causes an increase in the workload of the employees concerned and/or how a facilitation of work flows can be realised.  Exact investigations as to the impact and nature of organisational measures are required; it has to be determined how a modification of organisational structures will affect the volume of work in view of the office employees' concrete situation.



§ 85 (2) No. 3 [Conducting Further Training Courses for Employees]



This co-determination right complements the provision contained in paragraph 2, no. 1.  Unless the further training is subject to statutory, collectively agreed, or other legal provisions, the personnel representatives are required to co-determine, how the further education courses are conducted at the office.  Conducting further training at the office primarily consists in executing the general rules and policies.  Even the specific composition of concrete individual training courses is subject to the co-determination right.

Any decisions in the context of further training events concerning individual employees are not subject to the co-determination right.  This right does not exist with regard to requirements to be fulfilled, either.



§ 85 (2) No. 8 [Automated Processing of Personal Data]



When exercising its co-determination right, the staff council's main task consists in supervising that automated processing of personal data is not used to intrude upon an employees' privacy rights without a factual justification.  Such supervision is to be exercised even beyond monitoring possibilities.



§ 85 (2) No. 9 [Introduction, Modification, Extension of New Working Methods]



The co-determination right primarily complements the co-determination right pursuant to paragraph 2, no. 2.  Unlike the participation right laid down in said paragraph, it is not required that an increase in work performance or a facilitation of work flows is achieved.  Rather, any and all applications in the field of information and communication technologies are covered.  The term "working method" refers to the work process applied by an employee for the purpose of performing a task.  The application technology with respect to information and communication technologies is affected thereby.  Paragraph 2, no. 9, covers not only programmes used for structuring work flows, but also the equipment to the extent that the employees' real use is concerned. 

The terms "introduction, substantial modification or substantial extension" are used in the sense defined in paragraph 2, no. 8, above.  In this context, too, the co-determination right is basically comprehensive covering every form of application and preparation of the planned application.  The participation right thus also includes the programme selection, the choice of equipment, etc. through which certain working methods are predetermined or affected.



§ 85 (2) No. 10 [In-House Information and Communication Networks]



Information and communication networks include data processing installations that mutually link several workplaces or several EDP workstations.  Any and all office communication systems, text processing systems having access to several workplaces and any and all systems of operational data collection having different connected stations are subject to this provision.  As in paragraph 2 nos. 8 and 9, not only the introduction but also substantial modifications and substantial extensions of such systems are subject to the co-determination right; in this context, too, the co-determination right does not only extend to the "introduction" in the sense of initial application but also in the sense of all measures taken to prepare the setting up of the system.



§ 90 no. 3 [Participation in the Introduction of Fundamentally New Working Methods, etc.]



The co-determination right only exists with respect to fundamentally new working methods or fundamental modifications of working processes and work flows.  A modification is deemed fundamental, in particular, if it might possibly have substantially adverse effects on the employees concerned.  Such fundamental modification may also exist if office work flows are affected substantially.  In most cases, fundamental modifications are rationalisation measures intended to be carried out by modifying the treatment of files, or by increasingly introducing automation and data processing, or by using new technologies, such as microprocessors.  Any automation of a work process is subject to the right of participation.

In the context of the right of participation, the personnel representatives are primarily responsible for supervising that assured ergonomic findings are observed.  Furthermore, the personnel representatives are in charge of representing the employees' interests in any other respect.  In this context, they shall ensure that the employees are not exposed to unreasonable negative effects caused by such modifications.  If necessary, the personnel representatives have to attempt to obtain a compensation for such negative effects.

If, in the context of introducing fundamentally new working methods, or fundamentally modifying working processes and work flows, measures are taken that relate to facts that are subject to co-determination, such co-determination right exists, too, regardless of the respective participation right.