The works council exists within the company to represent the interests of employees, and it advises the entrepreneur and can influence the management of the company. In order to perform its duties properly, the Works Council has a right to information. It is up to the company's management to correctly inform and involve the Works Council in the decision-making process. But what if the entrepreneur fails to meet his obligation to provide information?
Right to information
The entrepreneur has to provide the basic information on the enterprise, such as the legal form, the articles of association and the organisational structure of the enterprise, at the beginning of each period of office of the Works Council. In addition, the financial and economic policy and the social policy of the enterprise must be shared with the Works Council.
In the consultation meeting between the Works Council and the entrepreneur, the entrepreneur is always obliged to inform the Works Council about requests for consent and advice that are planned. The entrepreneur is also obliged twice a year to share information about the company's finances with the Works Council, such as the budget and the (consolidated) annual accounts.
The right to information gives the Works Council the possibility to actively request information from the managing director. The information in question is information that the Works Council can reasonably be expected to need in order to perform its duties. The determining factor is what the Works Council deems necessary information and not what the management considers important to share with the Works Council.
The Works Council has to indicate which specific information it would like to receive and for which matter. If the director is of the opinion that confidential information is involved, he has the option to impose a secrecy obligation on the Works Council.
OR receives insufficient information?
If the Works Council does not receive the information requested from the management, it has several options. The Works Council can request mediation by the Business Commission of the Social and EconomicCouncil (SER). If mediation is not an option or does not succeed, the Works Council can enforce its right to information through the subdistrict court.
Proceedings at the subdistrict court take time, while the director sometimes takes or wants to take a decision at short notice. The Works Council will then have to give a negative opinion because it has received too little information. If the management does not wait for the advice or implements the decision against the advice of the Works Council, the Works Council can go to the Enterprise Section of the Court of Appeal if the decision should not reasonably have been taken.
The management has the obligation to provide sufficient information to the Works Council. If he fails to do so, the OR has various options to force the management to provide information.
Do you, as director or member of the works council, have questions about the right to information or other aspects of co-determination law? Please feel free to contact our specialists.