Works council involvement
Works council involvement covers its co-determination and participation rights when an internal reporting system is introduced and configured under the German Whistleblower Protection Act.
Works council involvement describes the collective participation and co-determination rights that must be observed when an internal reporting channel is introduced and configured under the German Whistleblower Protection Act (HinSchG). The HinSchG does not grant the works council any rights of its own and expressly leaves the provisions of the Works Constitution Act untouched (Section 40 (3) HinSchG). The general participation provisions of the BetrVG therefore remain decisive whenever a company sets up an internal reporting system.
At the centre stands the enforceable co-determination right under Section 87 (1) no. 6 BetrVG concerning the introduction and use of technical equipment that is intended or suitable to monitor the conduct or performance of employees. A software-based reporting channel processes employee data and may meet this requirement. In addition, co-determination on the order of the establishment under Section 87 (1) no. 1 BetrVG as well as participation and information rights under Sections 80, 90 and 92 BetrVG may apply. Co-determination extends to whether and how the system is concretely configured, but not to the statutory duty to establish the reporting office as such.
In practice, involvement is usually implemented through a works agreement governing the purpose, functioning, data categories, access rights, retention periods and the handling of anonymous reports. If the co-determination right is bypassed, the underlying measure may be invalid and the works council can assert claims for injunctive relief as well as proceedings before the conciliation committee under Section 87 (2) BetrVG. Early and trustful involvement of the works council also increases the acceptance of the reporting system among the workforce and thus its effectiveness.
Legal Basis
Section 40 (3) HinSchG; Section 87 (1) no. 6 and no. 1 BetrVG; Sections 80, 90, 92 BetrVG
Practical Example
A mechanical engineering company with 600 employees plans to introduce a digital reporting channel for tips about legal violations. The compliance department selects a software solution and presents the concept to the works council at an early stage. Because the system processes personal data and is suitable for monitoring conduct, both sides negotiate a works agreement setting out the access rights of the internal reporting office, deletion periods, the admission of anonymous reports and the exclusion of any evaluation for performance control. Only once the works agreement is concluded is the channel activated, so that the co-determination right under Section 87 (1) no. 6 BetrVG is preserved.