Betriebsrat: Freistellung von der Arbeit (time off and release from work for works council members)

Scope of application

Time off or release from work is relevant in particular in the following situations:

• works council meetings, negotiations with the employer and works meetings;
• advising and representing employees and preparing specific works council measures;
• taking part in proceedings before authorities, conciliation boards or courts that relate to the establishment;
• attending training and educational events;
• full release of works council members in establishments with more than 150 employees.

Time off under § 116 ArbVG requires that the specific activity is one of the works council's duties and that it needs to be carried out during working hours.

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Legal basis

The right to release from work is based in particular on the following provisions:

• § 116 ArbVG: time off needed to perform works council duties, with continued pay;
• § 117 ArbVG: full release of works council members in larger establishments;
• § 118 ArbVG: educational leave for works council members;
• § 119 ArbVG: extended educational leave in establishments with more than 200 employees.

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Deadlines

The following time-related rules must be observed:

• Time off for specific works council duties: There is no statutory notice period. As a rule, however, the employer must be informed in good time that time off is being taken.
• Full release: In establishments with more than 150 employees, one member must be fully released at the request of the works council. With more than 700 employees two members, and with more than 3,000 employees three members must be released. One further member must be released for each additional 3,000 employees.
• Educational leave: Each works council member is entitled to a maximum of three weeks and three working days of educational leave within one term of office. In exceptional cases this period can be extended to five weeks.
• Notice of educational leave: The employer must be notified at least four weeks before it begins. The specific dates must be agreed.
• Extended educational leave: In establishments with more than 200 employees, one further works council member can be released at the request of the works council for a maximum of one year without pay.

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Rights and obligations

Rights:

Works council members have the following rights in particular:

• the time off needed for works council duties, with continued pay;
• continued payment of the remuneration they would probably have earned without their works council activity;
• full release at the request of the works council once the statutory size of establishment is reached;
• release from work to attend suitable training and educational events;
• protection against financial or other disadvantages on account of their works council activity.

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Obligations:

When taking time off, the following obligations must be observed in particular:

• Time off may only be taken for statutory works council duties.
• The works council member must generally inform the employer in good time of the timing and expected duration of the absence.
• The activity must be described in enough detail for the employer to understand that it is works council work and why it is necessary. Confidential content or a complete agenda need not be disclosed.
• Taking time off without justification for purposes unrelated to the establishment can lead to loss of the entitlement to pay and – depending on the circumstances – to consequences under employment law.

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Common mistakes

The following mistakes occur regularly in connection with release from work:

Unjustified refusal of the necessary time off: If the activity is one of the works council's duties and needs to be carried out during working hours, time off cannot simply be refused.

Incorrect calculation of the size of the establishment: The entitlement to full release only exists with more than 150 employees and is asserted at the request of the works council.

Insufficient information from the works council member: Merely stating “works council work” may not be enough in the individual case. The nature, timing and expected duration of the activity should be communicated in a comprehensible way.

Assuming continued pay for every type of educational leave: In establishments with permanently fewer than 20 employees, educational leave under § 118 ArbVG is unpaid. Extended educational leave under § 119 ArbVG is also unpaid.

Assuming the employer bears all training costs: The employer does not automatically have to bear seminar, travel and accommodation costs. Its statutory obligation generally concerns release from work and – where provided for – continued pay.

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Recommended steps

The following measures help to avoid conflicts:

1. The taking of necessary time off should be communicated in good time and in a comprehensible way.
2. The timing, expected duration and general subject of the works council activity should be documented.
3. The entitlement to full release in establishments with more than 150 employees should be taken into account early in workforce planning.
4. Educational leave should be announced at least four weeks in advance and the dates coordinated with the employer.
5. Before a training course, it should be clarified who will bear the seminar, travel and accommodation costs.