Definition and Legal Classification of the Betriebsausschuss
Der Betriebsausschuss is a special body within the works constitution law (Betriebsverfassungsrecht) of the Federal Republic of Germany. Its legal basis is found in the Works Constitution Act (BetrVG), particularly in Sections 27 and 28 BetrVG. The Betriebsausschuss is a committee formed by and from the works council, designated to handle ongoing, daily tasks of the works council. It is established in workplaces that generally have more than nine works council members.
Legal Basis and Position within Co-Determination at the Workplace
Works Constitution Act – Relevant Provisions
The central legal basis for the Betriebsausschuss is Section 27 BetrVG. According to this, the works council must establish a Betriebsausschuss in workplaces with nine or more members. Sections 27 and 28 BetrVG regulate both the formation and the delegation of tasks to other committees for specialized areas.
Composition of the Betriebsausschuss
The Betriebsausschuss consists of the chairperson of the works council, their deputy, and additional members elected by the full works council from among its members. The exact number of these members depends on the total size of the works council:
- For works councils with 9–15 members: 3 additional members
- With 17–23 members: 5 additional members
- With 25 or more members: 7 additional members
Therefore, in its minimum composition, the Betriebsausschuss consists of the chairperson, their deputy, and three additional members.
Tasks and Powers of the Betriebsausschuss
Delegated Tasks
The Betriebsausschuss is responsible for carrying out the ongoing business of the works council. These ongoing tasks in particular include:
- Preparation and implementation of works council resolutions
- Organization of and invitations to works council meetings
- Handling day-to-day correspondence and records
- Assumption of administrative tasks
Statutory Non-Delegable Tasks
Not all matters of the works council can be delegated to the Betriebsausschuss. In particular, the following tasks remain exclusively with the entire works council:
- Basic decisions, e.g., when concluding works agreements
- Participation in individual personnel measures pursuant to Sections 99 ff. BetrVG
- Decisions regarding reconciliation of interests or social plans
- Resolutions on measures pursuant to Section 104 BetrVG
Further Committees According to Section 28 BetrVG
In addition to the Betriebsausschuss, the works council may, in accordance with Section 28 BetrVG, establish further committees for specific areas and assign them tasks for independent performance. Examples include:
- Economic Committee
- Personnel Committee
- Social Committee
However, the Betriebsausschuss remains the only committee whose formation is legally required.
Election and Term of Office of Members
Election Procedure
The members of the Betriebsausschuss are elected from among the works council members. The election is secret and requires a simple majority of the works council members present who are eligible to vote. Only regular members of the works council, not substitute members, are eligible to vote and to be elected.
Term of Office
The term of office of the Betriebsausschuss members is generally tied to the term of the respective works council period. It ends with the expiry of the term or if a member leaves the works council early.
Relationship to Other Bodies and Committees in Works Council Activities
Distinction from Other Committees
The Betriebsausschuss is regarded as the central executive body for the day-to-day work of the works council. In contrast to other committees, such as the Economic Committee as per Section 106 BetrVG or the Personnel Committee, the establishment of the Betriebsausschuss is mandatory if the works council reaches a certain size.
Interfaces with the Employer
Within the scope of works council activities, the Betriebsausschuss may represent the employer in organizational, administrative, and preparatory matters. However, decisions with far-reaching consequences in co-determination matters remain with the entire works council or central works council.
Legal Status and Protection of Members
Special Protection Against Dismissal
Members of the Betriebsausschuss, as members of the works council, enjoy special protection against dismissal in accordance with Section 15 of the Dismissal Protection Act (KSchG). This means that ordinary dismissal during their term of office is generally inadmissible.
Release from Work and Training Entitlement
To properly fulfill their duties, members of the Betriebsausschuss are entitled to necessary training, provided such training is required for their work in the Betriebsausschuss. In addition, they may be released from their professional duties to the necessary extent with continued payment of remuneration (Section 37 BetrVG).
Literature and Further References
Comprehensive legal treatment as well as current case law regarding the Betriebsausschuss can be found in relevant commentaries and handbooks on works constitution law. In particular, it is worthwhile to compare the regulations on the Betriebsausschuss in Germany to the corresponding rules in Austria and Switzerland in order to highlight differences in labor law.
Summary
The Betriebsausschuss is a statutory organ of the works council in larger workplaces and plays a central role in the efficient accomplishment of works council tasks. Its powers, composition, members’ rights, and the legal boundaries of its competencies underline its importance in the system of workplace co-determination. Compliance with statutory requirements makes a significant contribution to effective and legally secure works council activities.
Frequently Asked Questions
How is the Betriebsausschuss formed legally?
The Betriebsausschuss is formed in accordance with Section 27 BetrVG (Works Constitution Act) in workplaces with typically more than nine works council members. The election of the Betriebsausschuss takes place at the inaugural meeting of the newly elected works council. The size of the Betriebsausschuss depends on the size of the works council; according to Section 27 (1) BetrVG, in addition to the chairperson and their deputy, at least three and at most seven additional works council members are to be elected to the Betriebsausschuss. The members of the Betriebsausschuss are elected from among the works council in a secret ballot and according to the rules of majority voting (Section 27 (2) BetrVG). Substitute members cannot be elected to the Betriebsausschuss, except for the deputy chairperson of the works council.
What tasks and powers does the Betriebsausschuss have under the Works Constitution Act?
The Betriebsausschuss is the executive body of the works council between its meetings. According to Section 27 (2) sentence 1 BetrVG, it handles the ongoing business of the works council. This includes organizational tasks such as preparing works council meetings, ongoing correspondence, receiving and handling incoming applications, and monitoring the implementation of works council resolutions. However, the Betriebsausschuss can be assigned additional tasks by the works council, provided these are not expressly reserved for the council as a body (for example, in co-determination matters under Section 87 BetrVG). Legally binding declarations and resolutions concerning matters subject to co-determination can, as a rule, only be made by the works council as a whole and cannot be delegated to the Betriebsausschuss (Section 27 (2) sentence 2 BetrVG).
Who elects the members of the Betriebsausschuss and what is their term of office?
The members of the Betriebsausschuss are appointed solely by the members of the works council in a secret ballot. The election takes place at the very first meeting of the newly constituted works council (inaugural meeting). The term of office of the elected members of the Betriebsausschuss is linked to the term of the works council—that is, it ends with its deselection, resignation, dissolution, or upon expiry of the regular four-year term (Section 21 BetrVG). If a member of the Betriebsausschuss is removed from the body or leaves the works council (e.g., by resigning their mandate, leaving the company, or other circumstances), a successor must be elected for the remainder of the works council’s term.
What legal limits exist regarding the delegation of tasks to the Betriebsausschuss?
Delegation of tasks to the Betriebsausschuss is subject to specific legal limitations. Pursuant to Section 27 (2) sentence 2 BetrVG, the Betriebsausschuss cannot be assigned tasks that the works council itself cannot delegate. This especially concerns matters where the law requires a resolution by the entire works council, such as participation in social, personnel, and economic matters (Sections 87, 99, 111 BetrVG). Decisions on conciliation committees, dismissals, reconciliations of interests, and social plans must also be decided solely by the works council itself. Thus, the Betriebsausschuss can only take over operational and ongoing tasks, provided the works council has resolved to do so beforehand.
To what extent is the Betriebsausschuss accountable to the works council?
The Betriebsausschuss is always obliged to report to and account for its actions to the works council. The basis for this is Section 27 (2) BetrVG, which states the Betriebsausschuss must report regularly to the works council. This includes all ongoing business and tasks carried out on behalf of the works council. The works council may inspect all documents and proceedings, and it has the right to issue instructions and request reports from the Betriebsausschuss. Furthermore, the Betriebsausschuss is obligated to promptly inform the works council of all important decisions and processes; in the event of a conflict, the resolution of the works council always prevails.
Can the Betriebsausschuss negotiate independently with the employer side?
The Betriebsausschuss is permitted to engage in discussions with the employer side, provided the task assignment and mandate has been given by the works council (e.g., for negotiating preparations). However, the Betriebsausschuss cannot independently conclude legally binding agreements with the employer that require co-determination or a resolution (§ 27 (2) BetrVG). Such binding decisions—for example, the conclusion of works agreements or approval of individual personnel measures under § 99 BetrVG—may only be made by the entire works council body. Thus, the role of the Betriebsausschuss vis-à-vis the employer is expressly limited to preparatory and supportive activities.
What happens in the event of incorrect formation or delegation of tasks to the Betriebsausschuss?
Mistakes in forming the Betriebsausschuss, for instance if the election is not conducted properly or required procedural rules are not observed, may affect the validity of measures undertaken by the committee. This is especially relevant for determining whether the Betriebsausschuss was lawfully entrusted with running ongoing business or special tasks. If tasks are unlawfully delegated (such as the delegation of non-delegable decisions), the related measures are null and void and may be challenged in court if necessary (§§ 23, 23a BetrVG). In extreme cases, improper work by the Betriebsausschuss can result in challenges to works council resolutions or elections, which can have serious legal consequences up to and including dissolution of the works council.
