Let’s talk about health & safety

Consulting with the works council on ­occupational health & safety matters

By Christoph Frieling, LL.M. (East Anglia)

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Legislation on occupational safety has a long history in Germany. Likewise, compliance with the codetermination rights of the works council in occupational health and safety matters under section 87 (1) no. 7 of the German Works Constitution Act (Betriebsverfassungsgesetz, BetrVG) continues to be a hot topic. Disputes in this area are often fought with much commitment and passion on both sides, especially since there are a great number of occupational health and safety framework provisions that need to be fleshed out and em­ploy­­­ees are directly affected. In many cases, a conciliation committee is created.

Health & safety regulations and codetermination rights

Under section 87 (1) no. 7 BetrVG, the codetermination rights of the works council apply to company rules on occupational and health protection. The codetermination right is triggered if a legal duty to act is objectively present and, in the absence of mandatory legal requirements, requires regulation at works level to achieve the stated occupational health and safety objective. It is irrelevant whether the framework provision serves occupational health and safety purposes directly or indirectly. If the statutory requirements provide the employer with some leeway in implementing work safety, the works council has a right to codetermination. There are numerous such framework regulations in this area. The BetrVG itself provides for the involvement of the works council at various points concer­n­ing measures surrounding occupational safety or the humane design of the workplace. This approach is meant to achieve the most effective implementation of the statutory occupational safety provisions in the interests of workers.

General health & safety obligations of the employer

It follows from section 3 German Occupational Health & Safety Act (Arbeits­schutzgesetz, ArbSchG), as the prototype of a general clause, that the employer has a duty to set up a suitable occupational safety organization. This includes the abstract delegation and allocation of certain tasks and duties to management and other employees. If a certain ma­n­agement level is to be allocated extensive authorities and tasks, this requires prior compliance with the codetermination rights of the works council. The appointment of third parties to carry out certain health and safety tasks, allowed under section 13 (2) ArbSchG and subject to certain conditions, does not exclude the right of codetermination. Although it is true that the delegation of certain employer duties in the field of occupational safety to third parties means that said parties will execute the duties under their own responsibility, this serves to expand the group of those bearing responsibility but does not release the employer from his own responsibilities: The employer remains the party with the (main) responsibility alongside contractors. The codetermination right of the works council thus remains, provided the employer retains some leeway when implementing occupational safety mea­sures. Whether the specific allocation to an individual employee or a third party is to be deemed an individual measure not subject to codetermination, or whether it also qualifies as a collective situation triggering the codetermination process, must be examined in the individual case. If duties are to be delegated to a third party, the employer, when negotiating the agreement, must ensure the proper ex­ercising and protection of codetermination rights. The employer may not enter into any commitments that designate otherwise.

The employer also has a monitoring and adjustment duty as laid down in section 3 (1) ArbSchG: All action taken must be monitored with respect to its effectiveness and the possible need for adjustment with the goal of improvement. There is a constant need to involve the works council due to the continual development of business procedures and processes concerning both this monitoring process, but also, if necessary, the adjustment process. Ignoring this will allow the works council to initiate actions for court orders before the labor courts, to initiate proceedings before the conciliation committee and to involve the supervisory agencies of jurisdiction in order to ensure that it can exercise its influence and codetermination rights.

Risk assessment as starting point for codetermination

The application of framework provisions, however, requires the presence of (specific) risks, which must either have already been established or be established by performing a risk assessment at the workplace (e.g., noise level). Only then may such framework provisions trigger a specific legal duty of the employer to act, compliance with which requires the cooperation of the works council. Section 3 (1) sentence 1 ArbSchG has the following special feature: It is not only a framework provision but also a general clause. In view of the codetermination right under section 87 (1) no. 7 BetrVG, a general clause requires specific indications of a need for regulation at works level, otherwise there would be no scope for voluntary works agreements and measures demanded by the works council in response to workplace changes. This in general would require a specific health hazard as indication. Interaction between section 3 (1) sentence 1 ArbSchG and section 5 (1) ArbSchG (risk assessment), however, shows that whether the codetermination right under section 87 (1) no. 7 BetrVG is triggered depends solely on whether there is a specific risk within the meaning of section 5 (1) ArbSchG. The employer determines this by performing a risk assessment. Accordingly, the outlines of the general obligation under section 3 (1) ArbSchG depend on a specific risk rather than an – more intense – imminent hazard.

Conciliation committee as a method of conflict resolution

Since codetermination on health and safety issues according to section 87 (1) no. 7 BetrVG is considered compulsory co-determination, employer and works council may resort to a conciliation committee to resolve their dispute. The committee acts as an arbitration body for either party to call upon. It generally creates binding regulations and the independent chair has the decisive vote.

A conciliation committee arises from a specific regulatory conflict between the works council and the management. To resolve this conflict, every conciliation committee must, when it is first established, be provided with a definition of the subject matter. This definition delineates its jurisdiction. A decision of a conciliation committee is invalid if the committee insufficiently carries out its regulatory mandate and decides on no final regulation. While codetermination of occupational health and safety matters within the meaning of section 87 (1) no. 7 BetrVG is a special case in that the conciliation committee must address not only regulatory issues but also legal issues, there must nonetheless be a specific regulatory subject matter. Generally, the details of the regulatory mandate of a conciliation committee depend on the occupational health and safety framework provisions to be fleshed out.

Conciliation committee and risk assessment

What happens, however, if an employer has not carried out a risk assessment but a conciliation committee is in place? The German Federal Labor Court (Bundesarbeitsgericht) ruled recently that such a risk assessment may not be carried out by the conciliation committee itself. A conciliation committee is neither the party which, according to section 13 (1) ArbSchG, is responsible for performing the obligations of the employer under, inter alia, section 5 ArbSchG, nor can occupational health and safety obligations be delegated to a conciliation committee in accordance with section 13 (2) ArbSchG. In the absence of a risk assessment, a conciliation committee is prevented from carrying out its regulatory mandate. Any ruling of the committee is void.

Conclusion

Employers and works councils need to get their act together. Employers – in adherence with the ArbSchG – have to perform risk assessments. Works councils need to restrain themselves and exercise their codetermination right taking the results of the assessment into account. As a result, employers and works councils should be able to negotiate occupational health and safety matters more effectively, maybe even without the involvement of a conciliation committee.

c.frieling@justem.de