Worker participation - Germany

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Carsten Brück, Kooperationsstelle Hamburg IFE GmbH, Germany


Introduction

Germany has a well-established regulatory framework for worker participation. Rules were set out as early as the 1950s on how workers participate in management decisions - through board membership and works councils (see chapters 3.4 and 3.5). Indeed, works councils have a crucial role in OSH participation (see chapter 3.5.1.1). There is also the function of the Sicherheitsbeauftragter (lit.: safety delegate, the function refers to the health and safety representative, HSR) - which has a long tradition in German law.

Beyond the regulatory framework, there are, however, shortcomings in how worker participation is implemented in practise: Only 38% - 45% of employees are represented by a works council.[1] In contrast to other EU-Member States, the HSR’s role is to support management rather than represent workers.[2] [3]

This article describes direct and indirect participation, focusing on formal participation structures (legal instruments), including general worker representation in management decisions, and specific representation with regard to safety and health at work. An overview of methods of worker participation can be found in Methods and effects of worker participation and Occupational safety and health management systems and workers’ participation.

Regulatory framework for worker participation

International level

At the international level, regulatory provisions on worker participation are contained in Article 19 of ILO Convention C-155. [4] Article 12 of the (non-binding) ILO Recommendation R-164 [5] describes more specific rights and options for employees and their representatives with respect to worker participation. Recommendation R-129 contains general recommendations on communication between employers and workers.[6]

As of 2013, Germany has not yet ratified ILO Convention C-155.[7]


European and national level

As far as European legislation is concerned, general employee participation is referred to in Council Directive 2001/86/EC[8], in Directive 2002/14/EC[9], and (with special regard to OSH) in the Framework Directive 89/391 EEC.[10]

The European Directive 2002/14/EC[9] establishes a general legal framework for informing and consulting employees in the European Community. The directive makes it a requirement for employers to inform and consult employees via the workers’ representatives in the company, in three specific areas:

  • the recent and probable development of the undertaking's or the establishment's activities and economic situation;
  • the situation, structure and probable development of employment and any anticipatory measures envisaged;
  • decisions likely to lead to substantial changes in work organisation or in contractual relations.

The Directive was incorporated into the German legal system by the law on establishment constitution (‘Betriebsverfassungsgesetz’, BetrVG).[11] This law was first drawn up in 1952, and has been modified on a number of occasions, mostnotably in 1972 and 2001.

Further rules on co-determination were also established by a series of laws originating in the 1950s: ‘Mitbestimmungsgesetz’, ‘Montanmitbestimmungsgesetz’ and ‘Drittelbeteiligungsgesetz’.[12] [13] [14] The law on European Societies and Workers Participation (‘SE-Beteiligungsgesetz’, SEBG)[15] transposes Directive 2001/86 EC supplementing the Statute for a European company with regard to the involvement of employees.

The main legal act for informing and consulting workers on OSH is the OSH Framework Directive 89/391/EEC.[10] Worker participation is a fundamental part of the OSH management framework as promoted in this directive. In Germany, most of the provisions of the Framework Directive were transposed by the act on occupational safety and health (‘Arbeitsschutzgesetz’, ArbSchG).[16] The transposition of single provisions like Art.3c of Dir 89/391 EEC can be found in other national regulations (see below, chapter 3.5.1.4).

OSH and worker participation

For more information on OSH and social dialogue in Germany, please consult the OSH Wiki article OSH system at national level - Germany

National level

At national level, trade unions and employer associations participate in the decision making process of the national legislator. Parliamentary rules (§70) govern how committees invite social partners for consultation during the law-making process.[17] A list of social partners and interest groups is published by presidency annually.[18]

At the national ministry for labour and social affairs (BMAS), social partners are represented in expert groups that prepare and decide on OSH ordinances and technical rules for prevention. Lists of the expert groups and committees are provided by BMAS and the Federal Institute for Occupational Safety and Health (BAuA).[19] [20]

With regard to the strategic steering of OSH activities in Germany trade unions are represented in the National OSH Conference (‘Nationale Arbeitsschutzkonferenz’, NAK) as well as in the sub-committees. The NAK is responsible for the Joint German OSH Strategy (‘Gemeinsame Arbeitsschutzstrategie’, GDA)[21], see also National strategy and programmes.

The Commission for OSH and Standardisation (‘Kommission Arbeitsschutz und Normung’, KAN) is the national body that consults the national standardisation institute DIN on issuing national standards with OSH relevance. The KAN consists of 16 members; five of whom are delegates from the trade unions.[22]

Trade unions are also members in societies, associations and networks that deal with OSH research and promotion. In addition they have own research facilities issuing OSH information and studies. [23]

Regional level

On regional level there are chambers of labour which have only been set up in the two smallest States in Germany, Bremen (‘Arbeitnehmerkammer Bremen’) and Saarland (‘Arbeitskammer des Saarlands’). Both are public bodies that represent the economic and political interest of the workers, provide expertise for regional policy makers and give advice for workers. They are financed by worker contributions.[24] [25]

See next chapter for representation in regional statutory accident insurance bodies.

Sectoral level

Collective bargaining There are no sectoral organs for worker representation. Professional chambers only exist for companies and freelance professionals in Germany, e.g. industry and trade chambers, chambers of physicians and lawyers.

Worker representation is only ensured by the trade unions. Most trade unions represent workers from a certain sector. Due to union mergers over the last twenty years, some cross-sectoral trade unions have been established.[26] Trade unions make collective agreements usually found in negotiations with employers’ associations. Sometimes agreements are also made at company level. Collective agreements most frequently prescribe working time, breaks, holidays and shift work, but they can also cover OSH issues, like regulations on working time, holidays and shift work.

In general, collective agreements also cover the public sector. The biggest public sector union is Verdi.[27] There are special collective bargaining rules for civil servants (‘Beamte’). There is a special relationship between the government and civil servants, who do not have the right to strike. The special relationship is set out in the Federal Constitution (Art.33 para.5 Grundgesetz).[28]

Employees of the protestant and catholic church in Germany are in a similar situation. Due to a special relationship, they did traditionally not have the right to strike, also with constitutional approval (Art.140 GG).[28] The rights of church employees have only recently been strengthened by the Federal Labour Court.[29]

Representation in the statutory accident insurance bodies The statutory accident insurance bodies in Germany are self-executing bodies under public law (‘Öffentliche Körperschaften mit Selbstverwaltung’). The bodies are financed by the insurance premiums of their member companies. There were once numerous insurance bodies in the different industry sectors. Now, in 2013, they are merged into nine cross-sectoral bodies for private companies, and a separate one for agricultural and fisheries. There are still 26 accident insurance bodies in the public sector.[30]

The accident insurance bodies have the right to issues their own rules on prevention, in accordance with national laws. They decide independently on prevention strategies and premium models OSH infrastructure. There are three organs of self-execution that are legally defined: the delegates assembly (‘Vertreterversammlung’), the Board (‘Vorstand’) and the management (‘Geschäftsführung’)

The assembly and board are organs, representing employers and workers by equal share (‘paritätisch’). The assembly consists of 60 representatives, while the number board members depends on the body. Both sides send the same number of representatives, which are elected in the social elections (‘Sozialwahl’). Trade unions compile lists of worker candidates, but independent candidates can also be elected.[31]


Company level

There are different ways that workers’ representatives participate in decision making in the so-called ‘co-determination. The current legislation has a tradition that goes back to the 1950s.

Co-decision in management

Due to the act on co-determination (‘Mitbestimmungsgesetz’, MitbestG)[12] companies with over 2000 employees must allow workers representatives to participate in decision making. Workers representatives have 50% of the seats in the supervisory board (‘Aufsichtsrat’). This is also known as parity co-determination (‘paritätische Mitbestimmung’) because shareholders and workers are equally represented.

The supervisory board normally consists of 12 representatives; but in companies with more than 10,000 or 20,000 workers, there are 16 and 20, respectively. The seats of the workers are held by employees from different levels within the company; at least one worker representative must have a management function within the company. At least two must be sent by a trade union (three if the supervisory board consists of 20 representatives). They must not necessarily work in the company.

According to German company law (‘Gesellschaftrecht’), the management board (‘Vorstand’) is responsible for operative management, while the supervisory board (‘Aufsichtsrat’) checks and monitors the management / board. The supervisory board decides by the majority of its members. In deadlocks, the vote of the chairperson counts double (§29 Abs.II MitbestG).[12]

It can be concluded that the chairperson has a crucial role in the management’s decision. The chairperson is elected by a 2/3-majority of votes by the supervisory board. If a majority cannot be reached in the first ballot, the shareholders decide on the chairperson and the workers on the deputy. The deputy does not have the right of the double vote. This applies to all listed companies (‘Aktiengesellschaft’, AG), but also to limited companies and cooperatives.

Special rules are set out in the co-determination law for the steel and coalmining industry.[32] Parity co-determination can be found in companies with at least 1,000 workers already.

The One-Third Participation Act (‘Drittelbeteiligungsgesetz’)[33] establishes a system where at least one third of the seats on the supervisory board must be given to workers’ representatives in the above mentioned forms of companies when they have between 500 and 2000 workers.

Rules concerning the SE (‘Societas Europaea’) were established in the SEBG[15], which transposes Directive 2001/86 EC.[8] When founding an SE, a special negotiating committee of workers (Besonderes Verhandlungsgremium, BVG) and company representatives must come to an SE agreement on participation (§21 Art.IV SEBG)[15] within a six-month term (plus six month prolongation). If no agreement can be found, the new SE must adhere to the maximum co-determination level from one of the founding companies, until a consensus can be found.

In 2008, organs of co-determination could be found in about 700 German companies.[34]

Works councils on company level

Rules concerning the works councils are established by the law on industrial constitution (Betriebsverfassungsgesetz, BetrVG)[11] , which transposes Directive 2002/14/EC[9] on informing and consulting employees.

The right to set up a council only exists in workplaces with at least 5 staff who have the passive electoral right (§1 BetrVG). The works council must be established by the workers themselves, by forming a works assembly (‘Betriebsversammlung’, §42 ff. BetrVG).[11]

Group works councils (‘Gesamtbetriebsrat’) are set up for company groups (§47 ff. BetrVG), and there are also councils for conglomerates (‘Konzernbetriebsrat’) (§58 BetrVG).[11] New rules have been established with the SEBG which allow the formation of a works council for the SE as a whole, in accordance with Dir 2001/86 EC.[15]

See chapter 3.5.1.1 for the role of the works council, both generally and regarding OSH.


Establishment level

On establishment level, worker representation is mainly ensured by the works council, which is the only representative workers body in German law. It has various duties, with co-decision right many areas, including OSH. The works council also has members on the safety committee.

Rules concerning the works council on informing and consulting employees are established by the industrial constitution law (‘Betriebsverfassungsgesetz’, BetrVG)[11] , which transposes Directive 2002/14/EC.[9]

With regard to Art.3c of the Framework Directive 89/391 EEC [10], the German legislation has put in place a system of OSH delegates (‘Sicherheitsbeauftragter’). The OSH delegate is nominated by the employer and does not represent the workers ex officio.

Representation of workers

Works council

Regulatory framework and current data

In Germany, works councils are the only form of worker representation. Works councils in private companies are called (‘Betriebsrat’, abbr. BR). In the public sector, they are known as ‘Personalrat’ (abbr. PR) and have their legal basis in different laws that adapt the regulations of the industrial constitution law almost entirely (overview: [35]). In establishments that belong to the church the councils are called ’Mitarbeitervertretung’ (MAV) which also have an own legal basis in autonomous law of the churches (overview:[36]). Members of the MAV have fewer rights than their colleagues in private and public establishments. This does however not affect rights and duties in OSH as far as they are granted by the act on occupational safety and health (ArbSchG).[37]

The minimum staff number for setting up a council is 5 workers who enjoy passive electoral right (§1 BetrVG). The works council must be set up by the workers themselves by forming an assembly Betriebsversammlung (§42 ff. BetrVG).[11] The employer does not have the right to prevent the formation of a works council. However, employers have been known to actively impede the setting up of works assemblies, and, consequently, works councils.[38] [39]

Recent panel data shows that only between 38% - 45% of German employees (regional disparities) are represented by works councils.[1] Survey data from Eurofound shows, that only about 25% of the German establishments with 10+ workers have a works council and that representation of workers in Germany is under EU-27 average.[40] Figures also vary with sectors and sizes of the establishments. Developments in the retail sector have been criticised,[39] as has representation of workers in small enterprises.[38]

Composition Works councils are bodies consisting of worker representatives only. The representatives are elected by the workers for a four year term. The candidates are often connected to trade unions who draw up lists of candidates. There are also, however, independent lists or even independent candidates. The size of the works council is legally defined in §9 BetrVG.[11]

Table 1: Size of establishments and number of representatives in the works council

Size of establishment Representatives in the works council
5 – 20 workers 1
21 – 50 3
51 – 100 5
101 – 200 7
201 – 400 9
401 – 700 11
701 – 1,000 13
1,001 – 1,500 15
1,501 – 2,000 17
2,001 – 2,500 19
... ...
4,501 – 5,000 29
5,001 – 6,000 31
6,001 – 7,000 33
7,001 – 9,000 35
9,001 – 11,000 37
... ...

Source: §9 BetrVG[11], compiled by the author

Where there are over 200 staff, a legally defined number of works council members are exempt from work (§38 BetrVG)[11], as the following table shows:

Table 2: Size of establishments and number of works council members exempt from work

Size of establishment Number of works council members exempt from work
5 - 199 workers 0
200 - 500 1
501 - 900 2
901 – 1,500 3
1,501 - 2,000 4
2,001 – 3,000 5
3,001 – 4,000 6
... ...
9,001 – 10,000 12
10,001 – 12,000 13
12,001 – 14,000 14
... ...

Source: §38 BetrVG[11], compiled by the author.

The works council is a collective organ, presided by a chairperson (§26 BetrVG). It makes majority decisions (§33 BetrVG). In establishments with over 100 workers the works council can form committees and delegate duties to these (§28 BetrVG).[11]

Duties The works council has of a number of rights concerning involvement in making decisions; from co-decision (‘Mitbestimmung’) to co-operation (‘Mitwirkung’), hearing (‘Anhörung’), consultation (‘Beratung’) and information (‘Information’). Co-decision is the strongest form, because it means that the works council can block management decisions where no agreement can be found. In such cases, an arbitration committee must be established. The works council can also take the initiative and make own proposals. The works council send two members to the safety committee as worker representatives.[23]

Co-decision rights in companies include such issues as working times, shift work, breaks, and OSH in general (§87 BetrVG). Binding agreements are often made between management and the works council on these issues. Further co-decision rights can be established by law and/or collective agreement, and can supplement the general rules contained in §87 BetrVG. Co-decision on OSH includes measures to prevent workplace accidents and occupational diseases, as well as health promotion (§81 Abs.1, Nr.7 BetrVG).[11] Other areas for OSH co-decision are explicitly defined in legal provisions, e.g. for appointing occupational physicians and OSH experts (§9 section 3, ‘Gesetz über Betriebsärzte, Sicherheitsingenieure und andere Fachkräfte für Arbeitssicherheit’, ASiG).[41]

The works council has the right to initiate further measures and set up binding agreements. This also applies to OSH, in accordance with §80 and §88 of the BetrVG[11], and to chemical safety, in accordance with §21 section 4 of the ordinance on dangerous substances (GefStoffV).[42]

In addition, the works council has a so-called right to ‘corrective co-decision’; when workplace standards fall below acceptable levels regarding the organisation of work or the working environment. The works council can then demand measures from the employer to ensure such standards are met, or to lower the strain on the worker (§91 BetrVG).[11]

The works council must be kept informed about technical measures (e.g. machinery) and related documentation, including risk assessments. They are to be consulted about risk assessments, working condition checks, or accident analysis (§89 BetrVG). Generally, the employer must inform the council regarding its rights and duties. Information has to be timely and comprehensive (§80, §90 BetrVG).[11]

Other works council duties include actively promoting OSH and the implementation of prevention measures (§80, §89 BetrVG). This includes cooperation with the authorities: the works council has to support their work.[11]

The safety committee (‘Arbeitsschutzausschuss’, ASA)

§11 ASiG [39] obliges companies to establish an occupational safety committee ('Arbeitsschutzausschuss’, ASA) in organisations with over 20 staff (full time equivalent). The committee, which meets four times a year, must address all OSH factors, to improve cooperation between OSH stakeholders (§11 ASiG). The law only applies to individual workplaces; there is no requirement to set up company or group committees. The rules on the safety committee have been adapted for establishments of the public sector.ref> Pieper, R., Arbeitssicherheitsgesetz (ASiG), No.17 ff., Pieper, R., Arbeitsschutzrecht, Frankfurt / M., 2012. </ref>

The ASA is usually presided over by the employer or an employer representative. In practice, the meetings can also be organised and chaired by the OSH expert (‘Sicherheitsfachkraft’, abbr. Sifa). [43] Committee members include the employer (or a representative), the OSH experts, occupational physicians, OSH delegates, two workers’ representatives (nominated by the works council) (§11 ASiG).[41] In practice, other experts and (management) representatives can be asked to participate, such as representatives of disabled workers, fire safety officials, line managers or project managers. Sometimes not all OSH delegates are represented at every meeting. Sub-committees can be formed to discuss certain issues.[43]

Some establishments have neither safety experts, occupational physicians, nor a works council. This might be when an employer participates in the so-called entrepreneur model (‘Unternehmermodell’) and executes tasks of the OSH expert him -/ herself.[43] In such cases, the rules concerning the ASA have to be adapted. [40] [41] Meetings then include the employer, the OSH delegate, and the external prevention services (that provide the OSH expert and occupational physician).[43]

Data from 2011, which was gathered in a representative telephone survey among 6,500 establishments, shows that only 38% of German establishments (with 20 or more workers) have a safety committee. There are disparities in size and sector; 93% of establishments with more than 250 workers have a safety committee.[44]

Trade union delegation

Trade union delegation does not exist in Germany.

Health and safety representative

Article 3c of the Framework Directive 89/391 EEC declares that a worker representative with specific responsibility for safety and health of the workers can be elected, chosen or designated, in accordance with national law or practices of representation.[10]

The rule is transposed in the seventh volume of German social law (SGB VII), which obliges establishments with at least 20 staff to nominate a so-called OSH delegate (‘Sicherheitsbeauftragter’). The OSH delegate must be nominated by the employer. They operate at workplace level alongside their ‘normal’ job, and should not be a member of the management board (§22 SGB VII). Qualification for the task is required in accordance with Rule BGR A1 of the Statutory Accident Insurance. Training, typically three days, can be provided by either an accident insurance body or other external provider.[45]

The main tasks of OSH delegates are supporting the employer, acting as a ‘multiplier’, and being a person of trust within the company.[45] However, the OSH delegate does not represent the workers ex officio. OSH representation in Germany is only provided by the works council.

In 2011, approximately 520,000 private and public sector workers acted as OSH delegates.[46] There is no reliable information on how many establishments comply with the legal requirement of having an OSH delegate. In a representative telephone survey among 5,000 employees (2011), 69% answered that they worked in an establishment that had such an OSH delegate.[47]

Direct participation of workers

The Framework Directive esblishes further obligations for the employer in addressing single workers[10]:

  • Workers have to be instructed on the results of the risk assessment (Art. 6),
  • They have to be informed on risks at work and measures of protection and prevention (Art. 10),
  • They have to be trained on safety and health at work (Art. 12).

The duty to inform workers is transposed into German law by BetrVG. [11] §81 BetrVG requires employers to inform workers individually. This paragraph explicitly includes hazards and health risks at work. The employer is obliged to inform the worker beforehand about the job, single tasks, the context of the work within the organisation, hazards and health risks related to his work, and prevention measures, in accordance with §10 II of the German OSH act (ArbSchG).[16] Furthermore, the legal procedure also grants employees the right to be heard by the employer and the right of complaint (§82, §84).[11]

It is the duty of the employer to train workers so that they can spot hazards and risks at work, and thereby contribute to prevention. [37] Pieper R., 'Arbeitsschutzgesetz (ArbSchG)', Pieper R., Arbeitsschutzrecht, §2 No 27 ff and §12 No 1 ff, Frankfurt / M., 2012. </ref> §12 ArbschG obliges the employer to instruct the worker during working time. Instructions must take place after recruitment, when changing workplaces, work environment or equipment, and when assigning new tasks. The instructions must reflect the risks, and be repeated whenever indicated (§12 ArbSchG).[16] Data from 2011 indicates that a large majority of the employers (85%) comply with informing their staff.[48]

Workers can also make their own proposals on improving OSH. Companies may support this by a suggestion scheme. Where there is a works council, the employees can also demand that their representatives execute their right of initiative and co-decision.[23] If the employer does not then take steps, the workers can inform the authorities (§17 ArbSchG).[16]

Health monitoring by occupational physicians must be ensured by the employer. Workers have the right to be informed about the results of medical checks (§3 ASiG)[40] and can ask for checks on demand (§11 ArbSchG).[16]

German law also establishes duties for workers, e.g. §15 ArbSchG, which obliges the employees to take care, to follow instructions, and to use safety equipment and PPE provided.[16] In addition, they should report own observations on circumstances that might result in hazards or health risks, and defects in the safety equipment. §21 SGB VII obliges employees to support all measures taken by the employer to prevent accidents at work, occupational and work related diseases, and to follow instructions on these issues.[49]

Individual workers do not necessarily have to be addressed by the OSH management when carrying out a risk assessment. However, there might be situations where cooperation is indicated[50], and it is generally recommended by OSH experts.[51] Data from 2011 show that 72% of establishments which carry out risk assessments involve workers in that process.[52]

References

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  47. Lissner, L., Brück, C., Riedmann, A., Strauß, A., Zweiter Zwischenbericht zur Dachevaluation der GDA, Hamburg, München, Berlin, 2012, to be published. Available at: [43]
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Links for further reading

EU-OSHA – European Agency for Safety and Health at Work, European Survey of Enterprises on New and Emerging Risks (ESENER): Managing safety and health at work, Bilbao, Luxemburg, 2010. Available at: [49]

EU-OSHA – European Agency for Safety and Health at Work, Worker representation and consultation on health and safety: An analysis of the findings of the European Survey of Enterprises on New and Emerging Risks (ESENER), Bilbao, Luxemburg, 2012. Available at:[50]

EU-OSHA – European Agency for Safety and Health at Work (2012). Healthy Workplaces Campaign 2012-13 – Working together for risk prevention. Retrieved 5 May 2013, from: [51]

Eurofound – European Foundation for the Improvement of Living and Working Conditions (2010). Health and safety at work in SMEs: Strategies for employee information and consultation. Retrieved 5 May 2013, from: [52]

Eurofound – European Foundation for the Improvement of Living and Working Conditions, Social dialogue and working conditions. Dublin 2011. Available at: [53]

ETUI - European Trade Union Institute, The impact of safety representatives on occupational health. A European perspective. Report 107, Brussels 2009. Available at: [54]

ETUI - European Trade Union Institute, National Industrial Relations – Germany. Retrieved 3 May 2013 from: [55]

Contributors

Klaus Kuhl, Ruth Klüser