Whether it's the introduction of new technologies, questions about working hours, or the design of remuneration regulations, co-determination in Germany is a central element of the working world. A labor law attorney can provide valuable support in this area, for example, when it comes to the legally compliant implementation of company decisions or the defense against inadmissible measures. But what specific rights do works councils have? What obligations do employers and employees have in equal measure? And how has the legal situation changed as a result of recent legislative amendments and supreme court rulings? This article sheds light on the legal basis, explains the most important co-determination rights, and provides practical guidance on the complex web of works constitution law.
What is a works council and when can it be established?
The works council is the elected representative body for employees in a company. Its legal basis can be found in the Works Constitution Act (BetrVG), which has regulated cooperation between employers and employees since 1952. You can establish a works council in all companies with at least five employees who are permanently eligible to vote, at least three of whom must be eligible for election.
The size of the committee is based on the number of employees in accordance with Section 9 of the Works Constitution Act (BetrVG):
| Number of employees | Number of works council members |
| 5–20 | 1 |
| 21–50 | 3 |
| 51–100 | 5 |
| 101–200 | 7 |
| 201–400 | 9 |
| 401–700 | 11 |
| 701–1,000 | 13 |
The establishment of a works council requires the initiative of the employees—there is no legal obligation to establish one. Regular works council elections are held every four years, from March 1 to May 31.
What are the fundamental rights of the works council?
The Works Constitution Act grants the works council extensive rights, which vary in scope depending on the subject area:
Information rights: The employer informs the works council in good time about plans such as personnel planning (Section 92 BetrVG) or economic matters (Section 106 BetrVG).
Consultation rights: In the event of operational changes (Section 111 BetrVG), the employer must consult the works council. This may lead to a reconciliation of interests and a social plan.
Co-determination rights: In social matters pursuant to Section 87 of the Works Constitution Act (BetrVG), the employer cannot implement any measures without or against the works council.
When is the employer required to involve the works council?
The mandatory co-determination rights of the works council are specifically listed in Section 87 (1) of the Works Constitution Act (BetrVG). Without the consent of the works council, the employer may not make decisions in the following areas:
- Issues relating to the organization of the workplace and employee conduct
- Start and end of daily working hours, breaks, and distribution of working hours
- Temporary reduction or extension of normal working hours
- Time, place, and method of payment of wages
- Establishment of general vacation principles and the vacation schedule
- Introduction and application of technical devices for monitoring behavior or performance
- Regulations on accident prevention and health protection
- Form, design, and administration of social institutions
- Allocation and termination of company housing
- Issues relating to company wage structures and remuneration principles
- Setting piecework and bonus rates
- Principles governing the company suggestion scheme
If no agreement can be reached between the employer and the works council, a conciliation committee—a joint committee with an impartial chair—will decide.
What role does the works council play in technical surveillance and digitalization?
Increasing digitalization poses new challenges for works councils. The Federal Labor Court has clarified that the objective suitability of a technical device for monitoring is sufficient to trigger co-determination rights—a specific intention to monitor is not required.
The BAG ruling of July 16, 2024 (Ref. 1 ABR 16/23) on headset systems in retail is particularly relevant. The court ruled that even without recording, there is a right of co-determination if supervisors can listen in on conversations in real time.
Existing co-determination rights also apply to the use of artificial intelligence (AI). The Works Council Modernization Act 2021 expressly clarifies in Section 95 (2a) BetrVG that co-determination applies to personnel selection guidelines even if these are created with the support of AI. In addition, the works council can have a say in AI-supported systems for performance and behavior monitoring, in particular via Section 87 (1) No. 6 BetrVG.
What rights does the works council have when it comes to personnel measures?
The works council plays an important supervisory role in matters relating to hiring, transfers, regroupings, and dismissals in accordance with Sections 99 to 102 of the Works Constitution Act (BetrVG). The employer must inform the works council before any hiring or transfer and obtain its consent. The works council may refuse to give its consent for certain reasons, for example if the measure violates a law, a works agreement, or selection guidelines.
The one-week deadline is important in practice: if the works council does not respond in writing within one week of being informed by the employer, stating its reasons, its consent is deemed to have been given (deemed consent).
In the event of dismissals, the employer must consult the works council in accordance with Section 102 of the Works Constitution Act (BetrVG) and inform it of the reasons for the dismissal. If the employer fails to do so, the dismissal is invalid. The works council can object to the dismissal—this does not prevent the dismissal, but it does give the employee concerned the right to continued employment until a final decision is made in the dismissal protection proceedings.
Special protection against dismissal also applies to persons who campaign in advance for the establishment of a works council. Anyone who documents their intention to establish a works council by means of a notarized declaration may be covered by the protection of Section 15 (3b) of the German Employment Protection Act (KSchG) asa so-called preliminary initiator. This special protection against dismissal is primarily directed against ordinary dismissals for personal or behavioral reasons and is intended to prevent obstruction of the election. However, according to current case law, the protection does not apply during the six-month waiting period specified in Section 1 (1) of the German Employment Protection Act (KSchG), and extraordinary or operational dismissals remain possible in exceptional cases.
How is the remuneration of works council members regulated?
Works council members perform their duties on a voluntary basis. According to Section 37 (4) of the Works Constitution Act (BetrVG), they may neither be disadvantaged nor favored because of their activities. They are entitled to the same remuneration as comparable employees with a similar career development within the company.
The legislature has created new rules governing the remuneration of works council members as part of the Second Act Amending the Works Constitution Act. The new regulations were passed by the Bundestag at the end of June 2024 and came into force on July 25, 2024. The aim is to eliminate the legal uncertainties that arose following the Federal Court of Justice ruling of January 10, 2023 (Ref. 6 StR 133/22) and to define more clearly the criteria for selecting suitable comparators and for the professional development of works council members.
Employers must take particular care not to grant excessive salary increases. On November 27, 2025, the Frankfurt Higher Regional Court upheld the summary dismissal of a managing director who had granted unjustified salary increases to works council members—a clear signal from the courts against hidden benefits.
What are the duties of the works council?
The works council not only has rights, but also obligations. According to Section 2 (1) of the Works Constitution Act (BetrVG), employers and works councils must work together in a spirit of trust for the benefit of the employees and the company. Both sides must refrain from industrial action during their term of office (peace obligation).
Key responsibilities:
- Duty of confidentiality: Works council members must maintain confidentiality regarding confidential information and trade and business secrets (Section 79 BetrVG).
- Monitoring compliance with the law: The works council ensures that laws, collective agreements, and works agreements are complied with (Section 80 (1) No. 1 BetrVG).
- Collegial decision-making: The works council makes decisions by resolution (Section 33 BetrVG) – tacit acceptance is not sufficient.
What are the most common mistakes made in works council work?
In practice, we encounter typical pitfalls:
Insufficient information: The employer must inform the works council in a timely and comprehensive manner. The Federal Labor Court clarified that, in the case of classification, all factors relevant to remuneration must be disclosed on the employer's own initiative.
Missed deadlines: Notice periods must be observed for works council meetings. If the chairperson learns that a member is unable to attend, they must immediately invite substitute members to attend—by telephone or electronically if necessary.
Formal errors in elections: A works council election is not invalid if fewer candidates apply than there are seats to be filled. In this case, the next lower company size is used.
What current developments are shaping co-determination?
Works constitution law is facing modernization efforts. On July 11, 2025, the Federal Council passed a resolution on the reform of the Works Constitution Act (BetrVG). Planned priorities:
Expansion of the definition of employee: Inclusion of solo self-employed persons on platforms
Digital works council work: Communication via work emails, intranet, or messenger
Stronger rights in AI: Expansion of co-determination in the use of artificial intelligence
Combating union busting: Obstruction of works councils should be prosecuted ex officio
It remains to be seen whether and when these proposals will be implemented.
When should you consult an employment lawyer?
Co-determination in the workplace is a complex area of law with numerous pitfalls. In the following situations, it is strongly recommended that you consult a lawyer specializing in labor law:
- When establishing a works council and defending against attempts to obstruct it
- In the event of conflicts over the interpretation of co-determination rights
- When negotiating works agreements or social plans
- In the legal review of technical surveillance systems
- In the event of dismissals of works council members or dismissals to which the works council has objected
- Regarding remuneration issues for works council members
Conclusion: Co-determination as an opportunity for both sides
Co-determination in the workplace is an opportunity for constructive cooperation. Studies show that companies with effective co-determination offer better working conditions and are more productive. At the same time, the Works Constitution Act protects employees from arbitrary decisions.
Successful co-determination requires both sides to know and respect their rights and obligations. Current case law shows that neither employers nor works councils can ignore the legal requirements. Seeking legal advice at an early stage helps to avoid conflicts and develop viable solutions.
Whether you are an employer looking to involve a works council, an employee wanting to set up a works council, or a works council member seeking to assert your rights, don't hesitate to seek expert advice. Qualified legal advice ensures legal certainty, fair negotiation results, and a constructive working atmosphere.
