A member of the work council is, as a rule, bound to notify his employer in advance if he is going to carry out activities for the works council at his desk during business hours and to inform his employer as to how long such activities are likely to take. However, as an exception to the above, he will have no such duty if there is no need to seriously consider a temporary redistribution of work (Federal Labour Court, Order of 29 June 2011 – 7 AZR 135/09).
The nine-member works council of a company engaged in automobile market research sought a court declaration that its members were not obliged to first notify their employer before carrying out activities for the works council at their desks. In the view of the works council, no such duty to notify the employer exists at least where the member is able to carry out his activities for the works council without leaving his desk. The member is then fully available to his employer, colleagues and business partners while carrying out works council activities. For this reason, the employer has no legitimate interest in being informed.
Like the Baden-Württemberg Higher Labour Court before it, the Federal Labour Court has now rejected the works council's application in its order of 29 June 2011. The Federal Labour Court does, however, point out that it is not possible to establish a general rule accepting or rejecting the existence of a duty on the part of a works council member to notify his employer that he is going to carry out activities for the works council, but that it is instead a question of the circumstances of the individual case. In this connection, it has to be considered that the works council member's notification duty primarily serves the purpose of allowing the employer to cover the loss of working time. In principle, the works council member is required to notify the employer in advance. However, by way of exception to this duty, prior notification can be dispensed with where there is no serious necessity for temporarily redistributing work. Nonetheless, in this situation the works council member will also be obliged to inform his employer subsequently as to how much time he spent on his works council activities during a certain period of time.
The Federal Labour Court has confirmed the viewpoint it has adopted in its case law over a longer period of time and has made clear that the duty to notify the employer will apply in principle even when the works council member performs his works council activities at his desk. This clarification by the Federal Labour Court is to be welcomed if for no other reason than what matters is whether work that cannot be postponed has to be redistributed because the works council member is occupied with his activities for the works council and not available for the employer's work. Whether he is physically present in his office or in the works council office is irrelevant for these purposes. In addition, the Federal Labour Court's statement that the works council member must at least inform his employer subsequently as to the total amount of time he spent on works council activities is to be welcomed. Employers should not be left totally unaware as to when and for how long time was spent on works council activities since they have to at least be able to do a plausibility check on the scope and thus the necessity for such activities. Otherwise there would be plenty of opportunity for abuse.