Trade union fails with motion: court rejects exclusion of a member from the staff council
On November 7, 2024 (case reference: 19 A 9/24), the Schleswig-Holstein Administrative Court ruled that the requirements for excluding the chairperson of the staff council from the staff council were not met. In particular, he had not grossly breached his statutory duties when he prohibited a representative appointed by a trade union from attending the staff meeting as a speaker.
The right of a trade union representative to participate in an advisory capacity does not entitle him/her to give a lecture on a topic of his/her choice at the staff meeting.
Facts
The applicant, a trade union represented in the department, applied for the chairman of the staff council to be excluded from the staff council formed at the state office in the staff representation proceedings.
The chairman of the staff council had convened a staff meeting and asked for feedback by the end of August. Although the applicant confirmed her attendance in August, she did not nominate her trade union representative until September and announced his presentation on the subject of the “Collective Agreement of the Federal States”. The chairman of the staff council rejected this on the grounds that the organizational measures had already been completed and that a new presentation would interfere with the planned schedule. In addition, he had already scheduled a representative of his own union for the same topic.
On the day of the staff meeting, the applicant's representative nevertheless attempted to assert his right to speak. After he was denied this right, he left the meeting, saying that they would meet again in court.
The applicant argued that she had registered in good time and that she was entitled to speak. The chairperson of the staff council had to act in a trade union-neutral manner and was not allowed to discriminate against any trade union represented in the office.
The chairman of the staff council replied that the applicant's representative had been able to attend the meeting, speak and recruit members. A table for information material from the trade unions and bar tables for discussions with the employees had been available for this purpose.
Solution
Although the application is admissible (I.), it is unfounded (II.).
I.
Pursuant to Art. 21 (1) sentence 1 MBG Schl.-H. [Act on the Co-Determination of Staff Councils (Mitbestimmungsgesetz Schleswig-Holstein- - MBG Schl.-H.)], the Administrative Court may, at the request of a trade union represented in the department, decide to expel a member from the staff council for gross violation of statutory duties. The applicant is a trade union represented in the department. In order to qualify as such, it is sufficient that it may represent the interests of at least one member employed in the department.
II.
The requirements for the exclusion of the chairman of the staff council pursuant to Art. 21 (1) sentence 1 MBG Schl.-H. are not met.
The chairman of the staff council did not grossly violate his statutory duties. In particular, prohibiting the trade union representative delegated by the applicant from attending the staff meeting as a speaker on a topic of his own choice does not violate Art. 43 (2) sentence 1 MBG Schl.-H.
The exclusion of a member from the staff council requires that they have grossly violated their legal obligations. Exclusion is therefore the “last resort” to ensure that the staff council and its members work in a conscientious and lawful manner. In light of this regulation’s objective, breaches of duty which reveal a lack of awareness of duty on the part of the member or which may have a significant influence on the staff council’s lawful activities are to be regarded as “gross”. On the one hand, this must objectively be a serious breach of duty, while on the other hand, the neglect of duty expressed in this breach of duty also requires culpable conduct on the part of the staff council member. The breach of statutory duties must be of such significance that it destroys or at least seriously shakes confidence in the future proper performance of duties – from the perspective of an objectively judging, reasonable employee. The specific circumstances of each individual case are decisive. It is not absolutely necessary for the member to have committed repeated breaches of duty. Rather, a single breach can justify dismissal as a member of the body if it is serious enough.
In accordance with Art. 39 (1) sentence 1 MBG Schl.-H., the staff meeting consists of the employees of the department. In accordance with Art. 43 (1) MBG Schl.-H., the head of the department must be invited in good time and informed of the agenda. The head of the department or its representative must be given the floor at the staff meeting. Representatives of the trade unions represented in the department and the employers’ association to which the department belongs are entitled to attend the staff meeting in an advisory capacity in accordance with Art. 43 (2) sentence 1 MBG Schl.-H. This right of consultation also includes the right to speak and to take a position on all issues discussed. However, the trade union representative – like all other participants – is bound by the thematic limits of the staff meeting and the agenda. Art. 43 (2) sentence 1 MBG Schl.-H. does not, however, give representatives of the trade unions represented in the department the right to speak at a staff meeting on a topic of their own choice.
Practical advice
The decision sets clear limits for trade union initiatives to introduce their own key topics at staff meetings in order to raise their profile and recruit members. At the same time, it emphasizes the staff council’s role as chair of the meeting, which is responsible for the organization and adherence to the agenda.
Collective bargaining, social and economic policy issues may be discussed at a staff meeting, provided they directly affect the department and its employees. However, it is not permitted to discuss topics outside of this framework. Employers should pay particular attention if the chair of the meeting, in conjunction with a trade union, raises issues that exceed the limits of the permissible agenda.
If such inadmissible issues are discussed and if this leads to a disturbance of industrial peace, this can be considered a breach of duty in violation of the personnel constitution. In such cases, employers should consider reducing wages for the relevant period of the staff meeting.
The same applies to works meetings in accordance with the German Works Constitution Act.
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