What used to be distributed as a notice on the classic “bulletin board” or on a flyer in the company has long been done electronically. Employee information is shared on the intranet or sent by email. Most employers also have company profiles on social media. These are used for dialogue with customers, marketing purposes or for recruiting and are indispensable for many companies.
“It is therefore only understandable from the point of view of the works council that they would also like to use these advantages to report on their own work and on the one hand to inform the workforce, but on the other hand also interested third parties about the operational events or other things that are considered newsworthy,” says Michael Fuhlrott, labor lawyer and professor at the Fresenius University in Hamburg.
However, the position of the works council is different from a trade union that can also promote members and position itself politically. “The works council is responsible for all employees in the company, regardless of whether the individual employee wants it or not. The works council is therefore obliged to be politically neutral,” continued Fuhlrott. Therefore, the Works Constitution Act (BetrVG) obliges the works council to trustful and constructive cooperation with the employer. “Therefore, strike calls by the works council would be one reason for the works council to be dissolved,” Fuhlrott points out. In principle, the works council is also not permitted to disclose confidential operational processes that have become known to it.
The Federal Labor Court (BAG) should now clarify whether a works council can use Twitter and can send tweets about operational processes via a specially created account. The reason was the dispute between a clinic and the works council there. The latter regularly posted tweets on current operational topics and reported, among other things, on the possibility of a collective bargaining agreement to move up to a higher salary group, on completed negotiations with the employer on roster planning, vacation planning or simply congratulated the newly elected works council on its election.
This was a thorn in the side of the employer, since the works council brought such purely operational issues to the public. The employer therefore tried in court to prohibit the works council from using Twitter. While he was still successful before the labor court (ArbG Göttingen, decision of 6 November 2017, file number: 3 BV 5/17), the state labor court (LAG Niedersachsen, decision of 6 December 2018, file number: 5 TaBV 5/17) the works council and received the Twitter ban.
The Federal Labor Court (BAG) should now create clarity. This had scheduled a corresponding hearing for July 29, 2020, which was now canceled due to the withdrawal of the employer’s legal complaint. This makes the decision of the State Labor Court legally binding on works councils to use Twitter as a communication channel.
“In previous decisions, the Federal Labor Court always viewed the Internet as a means of gathering information for works councils, but not as a means of communication. Other courts have therefore prohibited works councils from operating their own website, which informs outsiders about internal company matters,” comments Fuhlrott, who considers a decision prohibiting the use of Twitter by the works council to be possible. “Unfortunately, the desired legal security, which would have resulted in a fundamental decision of the Federal Labor Court, is now missing,” Fuhlrott regrets. The topic that moves practice remains unresolved for the time being by the judge.