Works council – Appointment of substitute members and validity of works council resolutions

Facts of the case

The parties are in dispute over the validity of a replacement works agreement and the associated pay cuts. In 2007, the defendant, a metal company not bound by collective agreements, concluded a works agreement with the works council on a new remuneration system. This was followed in 2020 by a further works agreement, which provided for a 25% reduction in the so-called base amount and the exclusion of the remaining 75% from future remuneration adjustments (replacement works agreement). As there was a dispute as to whether the works council resolution underlying the signing of the replacement works agreement was valid, the thirteen-member works council decided at a later meeting to confirm the resolution. Eleven works council members and two substitute members had been invited to this meeting, at which only eight works council members and two substitute members were present.

During the morning of the day on which the resolution was passed, another works council member had announced that he would be unable to attend the meeting scheduled for the early afternoon due to illness. No further substitute member had been invited to replace this works council member. The plaintiff argued that the replacement works agreement was invalid because the substitute member had not been invited. The labour court dismissed the claim, but the Baden-Württemberg Regional Labour Court upheld it. The Federal Labour Court overturned the appeal ruling and dismissed the claim.

The decision

The Federal Labour Court considers the replacement works agreement to be valid and provides detailed reasons for this. A works council resolution can also be approved retrospectively. Retroactive approval is permissible and has retroactive effect from the date of signing. The retroactive effect of the approval means that the works agreement signed by the works council chairperson without a prior effective resolution by the committee is to be treated as if it had already become effective when it was concluded.

The timely invitation of substitute members is generally a prerequisite for the validity of works council resolutions. However, if the absence of a member only becomes known on the day of the meeting, the chairperson may generally assume that it is no longer possible to invite a substitute member in good time. In this respect, the chairperson has a wide margin of discretion. The Federal Labour Court emphasises that the summoning of substitute members must be done "in good time". What constitutes "in good time" depends on the circumstances of the individual case (e.g. scope of the agenda, complexity of the topics, preparation time). The decision as to whether it is still possible to summon a replacement member is at the discretion of the chairperson. If the absence only becomes known a few hours before the meeting, it is generally no longer reasonable to summon a replacement member.

Consequences for practice

The decision strengthens the works council's ability to act in the event of short-term absences and gives the chairperson* realistic discretion when appointing substitute members. Reappointment is mandatory if it is still possible in good time. In view of the factors to be taken into account, the chairperson may generally assume that the reappointment of a substitute member is not necessary if the absence of a works council member only becomes known during the course of the day on which the works council meeting is to take place.

Practical tip

Works council chairpersons should document when and how they learn of impediments and justify their decision to call in substitute members. In case of doubt, it is advisable to make a brief note in the minutes of the meeting. If there is uncertainty about the effectiveness of resolutions, retrospective approval is possible, but should be granted promptly. Employers can inform their works council chairpersons of this decision.