INKOVEMA Podcast „Episodes of Mediation“

#20 – Organisational mediation in the face of employee representation

What influence do works councils, staff councils and employee representatives have on organisational mediation?

Episodes of mediation. The podcast on practical questions about mediation and conflict management.

Welcome to the episodes of mediation, 

INKOVEMA's teaching stream on the practical issues of mediation and conflict management. 

Practical situations in mediation, but also in coaching and conflict counselling, are explained, reflected upon and categorised.

This is episode 20 – Organisational mediation in the face of employee representation.

Mediation between employee representatives (Works Council, PR, employee representatives) and the employer (management or HR management) is by no means unusual, but it is by no means a matter of course in terms of its design and implementation. In addition, the employee representatives are merely on the sidelines of the conflict, but are ready to enter the field at any time. Employee representatives can effectively substitute themselves.

This episode will focus on this structurally determined conflict relationship between employee representatives and the respective organisations. We can use these conflict relationships to scrutinise the basic ideas of mediation and common mediation practices. I would therefore like to give an insight into my practice with these conflict constellations, but also reflect on the basic building blocks and practices of classic mediation and teach their applications.

If you have any questions during the episode, please send me a voice message – and I will answer them in the next programme or in the podcast Gut durch die Zeit, where I regularly publish weekly by name.

The content of this episode is based on examples from my counselling and mediation practice in recent years and includes around three dozen conflict consultations in which works councils were directly involved or became involved through my intervention.

This is an initial insight when we are called in to deal with conflicts in companies and organisations: Employee representatives are by no means always a party to the conflict, but as a result of their "collective rights" they are always in the conflict's catchment area. Precisely because mediative conflict management initiated by the organisation calls or should call the works council to the scene, it is not the worst idea for mediators to always keep them in mind, even if they are not appointed by the client. We then have to proactively enquire during the order clarification process whether there is an employee representative, to what extent they are informed or whether it is worth considering actively involving them – proactively on the part of the management or PL! This sometimes seems risky for us externals, but is generally worthwhile in every respect. Few things are more annoying and fall back on us externals if, in the course of the mediation process or even afterwards, the works council or the employee representatives intervene and question all the work that has already been done because employee rights have not been observed. This is usually also annoying for the commissioning organisation.

What challenges arise in organisational mediation with regard to employee representatives (works councils and staff councils, employee representatives)?

1. in principle, this is an organisational mediationi.e. there is only one client, unlike in traditional mediation, where two client sides usually commission the mediation. Nevertheless, in mediations in which a works council is a party to the mediation, the basic structure is similar to a classic mediation. This is because the management or PL cannot order the BR/PR to mediate, or more precisely, to start mediation. The members of the works council have special rights, which is why the start of mediation is not within the scope of the employer's right of direction under labour law. As with a classic private conflict, mediation only starts if both parties to the conflict have agreed "in advance", i.e. are convinced of mediation as a procedure and the mediator as a mediator. They cannot only be convinced during mediation! There, at best, they will lose them again. What does this mean in practice? As the requested mediator, be on the lookout as early as possible if a suitable opportunity arises to ask about the existence, involvement or inclusion of the employee representative, but without being tactless and blustering! Spend enough time with the client to ask what is the smartest and most appropriate way to approach the works council and invite them to mediation. At the beginning of the corona period, I was in charge of an IT team in which one member was also on the works council and there was initially no reason for the head of the institute to involve the works council in his intention to resolve the conflicts in this team with the help of mediation. However, in order to keep an eye on the diversity of roles and to adequately recognise the potential effectiveness of employee representation, it was appropriate to formally inform the works council correctly and invite it to actively support the mediation. It was by no means a foregone conclusion that the team member would also bring his conflict to the works council. It depended on the proactive involvement of the IL.

2. if the management and the works council jointly use mediation as a tool and the works council co-commissions mediation, so to speakIn my opinion, this provides a powerful framework for conflict resolution. Employees who have come into conflict with each other will approach mediation work in a more disciplined, serious and consistent manner if both protective and welfare bodies support this mediation. On the one hand, the employer has statutory duties of care towards employees, but so does the works council, as set out in the Works Constitution Act. This applies to the constellation where employees have come into conflict with each other and the employer and works council as organisational representatives support the instrument of mediation.

3. if the works council as a body is itself a party to the conflictIn the case of collective bargaining, there is an increasing number of mediations with management or HR, even though collective labour law provides for a separate and well-known KM programme for this, keyword: conciliation board. If independent negotiations between the bodies of the company fail, the law provides for this conciliation board to be convened. As this procedure is generally seen as an enormous escalation step, – as far as I can see – the instrument of mediation is increasingly being used "upstream". This is certainly not a widespread phenomenon, but I have noticed it in my practice. In any case, the law allows this approach and does not see its own regulations as a final escalation programme. And this is a good field of work for mediators, because the significance of the conflict and the financial resources of the parties involved create important conditions for a successful leap over the initial hurdle. Saying yes to mediation is the bottleneck for mediation. This should be emphasised here once again.

4 A particular challenge for conflict mediation lies in the fact that the works council and PR are bodies that express their will by resolution. The principal-agent problem arises. If the entire committee takes part in the mediation discussions, which in my opinion is not uncommon, especially if the works council is a party to the conflict, the problem does not arise. However, if only representatives are present, then the feedback of the content and agreements must be taken into account, the scope of the negotiation mandate and the possible temptation to play a double game, be it that the absent body is used to decide nothing in the mediation, be it that the body is deceived or that in the mediation – perhaps also negligently – is provoked.

But more on that in a separate episode soon.

That’s it for this time, thank you very much for listening, and perhaps you were able to develop one or two ideas for one of your cases, take them further and make decisions. I wish you every success!

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For now, I bid you farewell with my best wishes. See you next time!

Get through this time well! Prof Dr Sascha Weigel

Supplementary information

1. the works council

The works council is a central institution in German labour law that serves as employee representation in companies. Its tasks, rights and duties are mainly regulated in the Works Constitution Act (BetrVG). This legal basis ensures that the interests of employees are represented vis-à-vis the employer.

Foundation and membership

A works council can be established in companies with at least five permanent employees entitled to vote, three of whom are eligible. The election of the works council is by secret ballot and is based on proportional representation. All employees of the company, including trainees, are entitled to vote and can be elected after six months of service.

Tasks of the works council

The main task of the works council is to represent the interests of the company's employees. It works together with the employer to improve working conditions. The specific tasks include

  • Co-determination: The works council has a right of co-determination in many areas. These include working hours, holiday arrangements, overtime, work processes and the working environment.
  • Participation and counselling: The works council is involved in social, personnel and economic matters. The works council must be consulted in the event of dismissals, hiring or transfers.
  • Monitoring: The works council monitors compliance with the laws, ordinances, accident prevention regulations, collective agreements (but is not a contractual partner!) and works agreements that apply in favour of the employees.

Rights of the works council

In order to fulfil its duties effectively, the works council has various rights:

  • Right of co-determination: Decisions on these issues cannot be taken against the works council without further ado.
  • Right to information: The works council has a right to be informed comprehensively and in good time by the employer.
  • Right to be heard: The works council must be consulted on questions of dismissal and other important decisions.
  • Right of initiative: The works council can make its own proposals for the organisation of workplaces and processes.
  • Right of appeal: Employees can turn to the works council in the event of problems, which will forward the complaint to the employer.

Protection and privileges for works council members

Members of the works council enjoy special protection against dismissal and other disadvantages that could arise from their activities as employee representatives. During their term of office and for one year thereafter, they are protected against dismissal in order to guarantee their independence.

Conclusion

The works council plays a decisive role in German labour law. Through its co-determination, participation and monitoring tasks, it ensures balanced representation of employee interests in the company. The statutory provisions of the Works Constitution Act create a framework that enables effective and fair cooperation between employers and employees.

2. the Staff Council

The staff council is the equivalent of the works council for the public sector in Germany and plays a similarly central role in representing employee interests. Its establishment, composition and function are governed by the Federal Staff Representation Act (BPersVG) and the corresponding state staff representation laws. These laws are similar to the Works Constitution Act, but are specifically tailored to the particularities of the public sector.

Education and membership

A staff council can be formed in all public service organisations that have at least five permanent employees entitled to vote. Elections to the staff council are by secret ballot and are based on the principle of proportional representation. All employees of the department, including trainees and interns, are eligible to vote. Employees who have reached the age of 18 and have been employed by the department for at least six months are eligible to vote.

Tasks of the Staff Council

The Staff Council represents the interests of the department's employees and works together with the department management to improve working conditions. Its main tasks include

  • Co-determination: The Staff Council has far-reaching co-determination rights in the organisation of working hours, holiday plans, further training and many other aspects of working life.
  • Participation: The Staff Council is involved in personnel matters such as recruitment, promotions, transfers and social matters.
  • Monitoring: The Staff Council monitors compliance with laws, collective agreements, service agreements and other legal regulations that affect employees.

Rights of the Staff Council

The Staff Council has a number of rights to enable it to fulfil its tasks effectively:

  • Right to information: The Staff Council must be informed comprehensively and at an early stage by the head of department about all relevant processes.
  • Right to be heard: The management must consult the Staff Council before taking important personnel and social measures.
  • Right of initiative: The Staff Council can make its own suggestions for improving working conditions.
  • Right of appeal: Employees can address their concerns to the Staff Council, which represents them vis-à-vis the department management.

Protection and privileges for staff council members

Similar to works council members, members of the staff council enjoy special protection against dismissal in order to ensure their independence and effectiveness. During their term of office and for a certain period thereafter, they are protected against dismissal and other measures under labour law.

Conclusion

The Staff Council is an indispensable institution in the public sector, ensuring that the rights and interests of employees are effectively represented. Through its co-determination and participation rights, it plays a key role in creating a fair and equitable working environment. The statutory regulations in the Staff Representation Acts enable a constructive and balanced partnership between employees and management.

3. the employee representative body

The employee representative body (MAV) is a body that represents the interests of employees in church and diaconal organisations in Germany. Its role and function are similar to those of works councils and staff councils, but with specific adaptations that take into account the special requirements of these organisations. The legal basis is usually the Employee Representation Act (MVG) of the respective regional church or the church law of the diaconia.

Education and membership

An employee representative body can be set up in all church and diaconal organisations with at least five permanent employees. The election of the MAV is secret and based on democratic principles. All employees, including part-time and fixed-term employees, are eligible to vote and be elected, provided they have been employed at the organisation for a certain period of time.

Tasks of the employee representative body

The MAV represents the interests of employees and works closely with the facility management to organise working conditions. Its main tasks include

  • Co-determination: The MAV has co-determination rights in the organisation of working hours, holiday planning, personnel planning and the introduction of new working methods and techniques.
  • Participation: The MAV is involved in personnel matters such as hiring, promotions and dismissals as well as in social and organisational issues.
  • Monitoring: It monitors compliance with employment contracts, church labour regulations and other statutory provisions for the protection of employees.

Rights of employee representatives

The MAV enjoys extensive rights in order to carry out its tasks effectively:

  • Right to information: The MAV must be kept fully informed of all relevant processes by the facility management.
  • Right to be heard: The MAV must be consulted on all important matters affecting employees.
  • Right of initiative: The MAV can submit its own proposals and initiatives to improve working conditions.
  • Right of appeal: Employees can turn to the MAV in the event of problems, which represents them to the management.

Protection and privileges for MAV members

Members of the MAV enjoy special protection during their term of office in order to be able to fulfil their duties without pressure. This includes protection against dismissal and other forms of discrimination.

Conclusion

Employee representation is an important body in church and diaconal organisations that ensures that the rights and interests of employees are protected. Through its co-determination, participation and monitoring functions, it contributes significantly to the creation of a fair and ethically responsible working environment. The special legal regulations within the framework of church and diaconal structures enable effective representation that takes account of both the spiritual and secular aspects of these organisations.