As a general principle, the employer must bear the equipment-related and personal costs associated with the activities of the works council and both parties must at all times work together in a spirit of trust and proportionality. The Federal Labour Court has now provided further details of the scope of the employer’s duty to pay the costs of works council training courses.
Federal Labour Court, decision of 17 November 2021 – 7 ABR 27/20
The parties were in dispute about whether the employer was obliged to reimburse the works council for training costs associated with a works council member’s participation in an introductory seminar. The works council had been billed EUR 831.81 in seminar fees plus a further EUR 233.98 in flat-rate day charges and parking costs. Seminar participants had received a “starter set” comprising, among other things, a tablet for works council activities, a legal commentary on the Works Constitution Act and a calculator (so called “seminar extras”), and had also been able to have a free initial consultation with a lawyer. There had been no option to book the seminar with the selected provider without the starter set and free initial consultation. The prices for equivalent seminars from organisers not including comparable extras were not significantly lower. The employer had refused to cover the costs of the works council member’s participation.
The works council claimed that it had chosen the selected seminar provider because it was familiar with it and had expected – and received – high quality training from it. The employer claimed that the starter set alone had a value of EUR 442.90. It considered the costs disproportionately high and unnecessary.
Both Darmstadt Labour Court and Hessen Higher Labour Court had confirmed that the employer was responsible for the costs.
Decision of the Federal Labour Court
The Seventh Civil Panel also ruled in the works council’s favour. Pursuant to section 40 Works Constitution Act, the employer was obliged to pay the costs arising from the works council’s activities. This included the costs in connection with a work council member’s participation in a training event pursuant to section 37(6) Works Constitution Act, provided that the knowledge imparted was necessary for the participant’s works council activities. According to the Court, the works council had a margin of discretion when deciding whether training was necessary, and this discretion extended to the content of the training event. As the obligation to bear costs was subject to the requirement of cooperation in a spirit of trust as set out in section 2(1) Works Constitution Act however, the works council must only burden the employer with costs that the works council considered reasonable. The works council must not consider participation in a training event necessary if comparable knowledge could reasonably be obtained for a lower price elsewhere.
Based on these considerations, the Federal Labour Court held that the works council had taken sufficient account of the principle of proportionality. The price for the seminar had been within the range of what was customary in the market. The works council could have been found to have overstepped its margin of discretion had the seminar extras significantly influenced the cost of the seminar, but there was no evidence of this given the moderate price of the seminar. One could instead assume that the works council member would have participated in the training even without the seminar extras.
The Federal Labour Court expressly left open the question whether the promise of the free seminar extras meant that the works council member had been unlawfully favoured pursuant to sentence 2, section 78 Works Constitution Act. However, even if this promise were null and void, this did not invariably mean that the entire contract for training was null and void. In the case in dispute, it must instead be assumed that participation would have occurred even without the promised extras.
The works council had also provided sufficient proof of the – refundable – seminar fee. There was no need for itemisation of the costs for participation in the training event. The submitted invoices basically needed to show the services provided by the training organiser that were covered by the employer’s obligation to bear costs and the prices charged for these. Should seminar fees be invoiced as a lump sum, however, it was generally sufficient to state the agreed amount and indicate the flat rate.
Gleiss Lutz comments
This decision of the Seventh Civil Panel fleshes out current established case law on the employer’s obligation to pay. Provided that the costs of works council training measures are necessary and reasonable, the employer is required to reimburse them. The works council has a margin of discretion with respect to the decision on costs. Any seminar extras, even on a larger scale, do not necessarily exclude the employer’s obligation to reimburse. It is instead the circumstances of the individual case, and in particular any comparable training offers, that are relevant to the requisite assessment of proportionality.