Betriebsvereinbarung abschließen (concluding a works agreement)

Scope of application

Works agreements are used, among other things, for the following subjects:

• general rules of conduct in the establishment;
• reimbursement of expenses and expense allowances;
• social plans in the case of certain operational changes;
• certain working time matters

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Legal basis

The works agreement is based on the following statutory provisions:

• § 29 et seq ArbVG: definition, written form requirement and permissible bases for regulation;
• §§ 30 to 32 ArbVG: publication, legal effects, period of validity, termination and continuing effect;
• §§ 96, 96a and 97 ArbVG: permissible subjects of regulation and different forms of co-determination in the establishment.

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Deadlines

The following rules are particularly relevant to the termination and continuing effect of works agreements:

• Termination: three months' notice (§ 32 ArbVG), provided the works agreement can be terminated at all.
• Continuing effect: after termination of a voluntary works agreement, its provisions continue to apply until a new agreement is concluded

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Rights and obligations

Rights:

In connection with works agreements, the works council and employees have the following rights:

• Works council: The works council can propose the conclusion or amendment of a works agreement and conclude a corresponding agreement with the employer. There is, however, no general entitlement to the conclusion of a works agreement. In the case of enforceable works agreements, the conciliation board can be called upon if no agreement is reached.
• Employees: The employees covered have a direct claim to compliance with the normative provisions of the works agreement. Individual consent is not required.
• Access to the works agreement: The works agreement must be made available in the establishment or posted in a visible place accessible to all employees (§ 30 para 1 ArbVG). § 31 para 2 ArbVG, by contrast, does not govern a general right of inspection but the inclusion of homeworkers in the scope of a works agreement.

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Obligations:

When concluding and implementing works agreements, the employer and the works council have the following obligations in particular:

• Publication: The works agreement must be made available in the establishment by the employer or the works council, or posted in a visible place accessible to all employees. Once it has taken effect, the employer must send a copy to each of the competent statutory interest groups.
• Written form: The works agreement must be concluded in writing.
• Observing the favourability principle: Works agreements must not place employees in a worse position than the applicable collective agreement

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Common mistakes

The following mistakes frequently occur when works agreements are concluded:

1. The subject matter has not been assigned to the works agreement either by statute or by collective agreement. Such a “free” or “non-genuine” works agreement has no normative effect as a works agreement.
2. The written form is not observed. An oral agreement has no normative effect as a works agreement. Claims under individual contracts may nevertheless arise from it in certain circumstances.
3. The requirements of the collective agreement are not sufficiently taken into account.

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Recommended steps

The following approach is recommended for validly concluding a works agreement:

1. Before negotiations begin, check whether there is a statutory or collectively agreed authorisation for a works agreement on the subject matter.
2. Conclude the works agreement in writing and properly make it available or post it in the establishment.
3. Check the statutory and collectively agreed requirements and have any deviations legally assessed.
4. Expressly regulate the period of validity, options for termination and any consequences of termination, observing the mandatory statutory requirements.