For 15 years, Alexander Wiele of German IT/IP law boutique Vogel & Partner has advised companies on all aspects of employment law as a certified specialist in this practice area – particularly at the interfaces with IT and data protection law. In this interview, he discusses “hiring” under German works constitution law in connection with the deployment of intra-group executives.
Leaders League: What co-determination rights does German employment law provide for the works council when the employer intends to implement a personnel measure?
Alexander Wiele: Under Section 101 Betriebsverfassungsgesetz (BetrVG – German Works Constitution Act), the works council may require the employer to rescind a personnel measure within the meaning of Section 99 para. 1 BetrVG (e.g., hiring or transfer of an employee) if the employer implements the measure without the works council’s consent. However, this applies only in company establishments that generally have more than 20 employees eligible to vote.
And when exactly does such “hiring” exist?
The case law focuses on the commencement of actual employment in the establishment. This exists where a person is integrated into the establishment in order to pursue the establishment’s operational purpose together with the employees already working there by performing work subject to instructions.
Does such integration require an employment relationship with the employer?
No. The legal relationship between the person and the owner of the...
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