Out of slumber and into the workplace - time to revitalise Section 28a BetrVG
Labour and law, AuR 2018-06
by Dr Sascha Weigel and Nikolas Vogel
Introduction to the text:
In July 2001, the Works Constitution Act was reformed – and almost revolutionised with § 28a BetrVG. With the introduction of § 28a BetrVG, the possibility was created for the employer and the works council to transfer the tasks of the works council to working groups. In response to far-reaching changes in the world of work and business, the works constitution was to be made fit for the future, in particular through more direct employee participation. However, § 28a BetrVG did not prevail and was not a success story in the land of democratisation and co-determination in German companies. Even before the standard was enacted, there was criticism: inadequate employee protection, excessive costs for companies, problems with the delimitation of competences between the working group and the works council, to name just a few of the points raised against Section 28a BetrVG.
And practice does not look encouraging either: The data on the use of Section 28a BetrVG as a participation instrument in companies is thin on the ground. However, it is clear that the provision has so far - even after more than 16 years since it came into force - not achieved the significance in practice that was originally hoped for. However, it would be a shame to allow Section 28a BetrVG to continue to languish in law as "dead letter law "1.2 This article will show that it can certainly be worthwhile for companies to make use of the option offered by Section 28a BetrVG.
The first part is concerned with demonstrating the regulatory content. The main focus will be on the conditions that led to the standard being ignored. What are the reasons why employees did not "adopt" the standard? – In the second part, a promising example from practice will be used to describe what companies need to pay attention to so that all company stakeholders and the company as a business unit can benefit from the application of Section 28a BetrVG.
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