The works council (Betriebsrat) is the legally established employee representative body in a German company, governed by the Works Constitution Act (Betriebsverfassungsgesetz, BetrVG). It holds far-reaching co-determination and participation rights — especially regarding hiring, dismissals, and the introduction of digital tools. HR professionals must understand these rights: failing to comply with mandatory consultation obligations can render personnel measures legally void.
What Is a Works Council?
The works council (Betriebsrat, BR) is an elected body that represents the interests of employees vis-à-vis the employer. Its legal basis is the Works Constitution Act (BetrVG), which has been in force in its current form since 1972 and was most recently modernised in 2021.
A works council is not the same as a trade union: while trade unions operate across companies and negotiate collective bargaining agreements (Tarifverträge), the works council acts exclusively at the level of a single establishment. Industrial action such as strikes is expressly prohibited for the works council — the principle of workplace peace (§ 74 BetrVG) obligates it to work cooperatively with the employer.
Two key forms of participation must be distinguished:
- Co-determination right (Mitbestimmungsrecht): The works council must actively consent. Without its consent, the employer's measure is legally void (e.g. introduction of technical monitoring systems under § 87 para. 1 no. 6 BetrVG).
- Participation right (Mitwirkungsrecht): The works council is informed and consulted — but the final decision rests with the employer (e.g. consultation before dismissals under § 102 BetrVG).
Requirements and Election of the Works Council
When Can a Works Council Be Established?
Under § 1 BetrVG, a works council can be elected in any establishment with at least five permanently eligible employees. At least three of these must be eligible to stand for election — meaning they must have been employed at the establishment for at least six months. The initiative can be taken by three eligible employees or by a trade union represented in the establishment. There is no legal obligation to establish a works council — the right rests with the workforce.
How Does the Works Council Election Work?
The election procedure depends on the size of the establishment: in establishments with 5 to 100 eligible employees, the simplified election procedure applies (§ 14a BetrVG), which can be completed in a single ballot within a few weeks. In larger establishments, the standard election procedure applies, involving an electoral board (Wahlvorstand), an election notice, and separate nomination and voting phases. Works council elections are held every four years, regularly between March and May.
How Large Is the Works Council?
The number of works council members is determined by § 9 BetrVG:
From a certain establishment size, works council members are fully released from their regular duties — with full pay, at the employer's expense. In establishments with 200 to 500 employees, at least one member must generally be fully released (§ 38 BetrVG).
Rights and Duties of the Works Council
Co-Determination Rights (§ 87 BetrVG)
The strongest participation rights of the works council are the co-determination rights under § 87 BetrVG. Here the employer cannot act unilaterally — it requires either the consent of the works council or must refer the matter to the conciliation board (Einigungsstelle). Key areas of co-determination include:
- Working hours: Start and end of the daily working day, breaks, distribution across the days of the week
- Holiday scheduling: Holiday plans and timing of leave
- Remuneration arrangements: Bonuses, piece-rate pay, performance allowances
- Technical monitoring: Introduction and use of technical systems capable of monitoring employee conduct or performance (§ 87 para. 1 no. 6 BetrVG)
- Health protection: Measures to prevent occupational health hazards
Participation Rights in Personnel Matters (§§ 99–105 BetrVG)
The law draws precise distinctions for personnel measures:
Hiring (§ 99 BetrVG): In establishments with more than 20 eligible employees, the employer must obtain the works council's consent before hiring new staff. The works council may withhold consent on specific grounds set out in the law — for example, if the hire would violate a works agreement or statutory provisions. If the works council refuses consent, the employer may apply to the labour court (Arbeitsgericht) for a judicial substitution of consent.
Dismissals (§ 102 BetrVG): Before every dismissal — whether ordinary or extraordinary — the employer must consult the works council. The works council has one week to respond for ordinary dismissals and three days for extraordinary dismissals. Critically: a dismissal issued without prior consultation is void under § 102 para. 1 sentence 3 BetrVG — regardless of whether the works council objects on the merits or not.
What the Works Council May Not Do
The works council has significant rights, but also clear limits:
- No industrial action (strikes) — this is exclusively the domain of trade unions
- No one-sided political activity within the establishment
- Confidential information received from the employer must not be disclosed externally (duty of confidentiality under § 79 BetrVG)
- No access to individual pay slips of other employees (with limited exceptions)
- No preferential treatment or discrimination against individual employees
The Works Council in HR Practice: What You Need to Know
For Hiring: Consent Procedure under § 99 BetrVG
Once your establishment employs more than 20 eligible employees, the following applies: before every hiring, transfer, or regrading, you must inform the works council and obtain its consent. To do so, submit the application documents and provide information about the planned position and pay grade. The works council has one week to reach a decision. If it does not respond within that period, consent is deemed granted.
For Dismissals: Mandatory Consultation under § 102 BetrVG
Checklist for works council consultation prior to dismissal:
- Notify the works council in writing: identity of the employee, length of service, and type of dismissal
- State the grounds for dismissal fully and clearly
- Observe the deadline: 1 week (ordinary dismissal) or 3 days (extraordinary dismissal)
- Document any objection raised by the works council
- Only then proceed with the dismissal
If the works council raises a formal objection on grounds set out in § 102 para. 3 BetrVG, the employee is entitled to continued employment pending a final court ruling in any unfair dismissal proceedings.
For Digital Tools: § 87 Para. 1 No. 6 BetrVG
When deploying technical systems capable of recording employee behaviour or performance — such as time-tracking software, productivity monitoring, or digital applicant management systems — the works council's co-determination right is triggered. This also applies to aptitude assessment procedures that generate automated evaluations. Scientifically validated, GDPR-compliant procedures with transparent methodology significantly ease the consent process, as works councils can understand how decisions are reached. Recommendation: involve the works council at an early stage and conclude a works agreement governing the use of digital selection tools.
Works Agreement: The Written Framework
A works agreement (Betriebsvereinbarung) is a written contract between the employer and the works council (§ 77 BetrVG). It applies directly and bindingly to all employees in the establishment — similar to an internal statute. The favourability principle applies: a works agreement may improve employee rights, but may not reduce them.
Typical subjects of works agreements include:
- Remote work and mobile working (rules on availability, equipment)
- Flexitime and flexible working hour models
- Data protection in the use of digital HR tools
- Introduction of applicant management systems or aptitude assessment platforms
In relation to collective bargaining agreements (Tarifverträge): collective agreements generally take precedence over works agreements (§ 77 para. 3 BetrVG), provided the subject matter is regulated by collective bargaining.
Frequently Asked Questions about the Works Council
When Can a Works Council Be Established?
A works council can be established as soon as at least five permanently eligible employees are employed in the establishment, of whom at least three must be eligible to stand for election (§ 1 BetrVG). The initiative can be taken by three eligible employees or by a represented trade union. There is no minimum age for the company.
What Rights Does the Works Council Have Regarding Dismissals?
Under § 102 BetrVG, the employer must consult the works council before every dismissal. The works council has one week (ordinary dismissal) or three days (extraordinary dismissal) to respond. A dismissal without consultation is void. If the works council raises a formal objection under the conditions of § 102 para. 3 BetrVG, the employee is entitled to continued employment pending a final court ruling in any unfair dismissal proceedings.
What Rights Does the Works Council Have Regarding New Hires?
In establishments with more than 20 employees, the works council has a consent right under § 99 BetrVG. It may withhold consent on legally defined grounds, for example if the hire would violate selection guidelines or anti-discrimination provisions. If consent is refused, the employer may apply to court for a judicial substitution of consent. Provisional measures are permissible, but the works council must be informed without delay.
What Is the Difference Between Co-Determination and Consultation?
Co-determination means: the works council must actively consent. Without consent, the measure is legally void (e.g. working time arrangements under § 87 BetrVG). Consultation means: the works council is informed or heard, but the measure may be implemented even without its approval (e.g. dismissal under § 102 BetrVG). The distinction is critical in practice: where genuine co-determination rights exist, bypassing them renders the measure void.
How Many Members Does a Works Council Have?
The number is determined by § 9 BetrVG. In establishments with 5 to 20 employees, the works council consists of one person; in establishments with 21 to 50 employees, of three persons. The graduated scale continues up to 35 members for establishments with more than 9,001 employees. From 200 employees, at least one member must be fully released from regular duties (§ 38 BetrVG).
What May the Works Council Not Do?
The works council may not carry out industrial action (strikes), engage in one-sided political activity, or disclose confidential employer information to third parties (duty of confidentiality under § 79 BetrVG). It may neither favour nor disadvantage individual employees.
Does the Works Council Need to Approve the Introduction of Digital HR Tools?
For technical systems capable of monitoring employee conduct or performance, a genuine co-determination right exists under § 87 para. 1 no. 6 BetrVG. This covers time-tracking systems, digital personnel files, and potentially AI-supported selection processes. Pure administrative software without a monitoring component does not generally fall within this provision. It is strongly advisable to conclude a works agreement governing the use of such systems at an early stage.
What Is a Works Agreement?
A works agreement (Betriebsvereinbarung) is a written contract between the employer and the works council (§ 77 BetrVG) that applies directly and bindingly to all employees. It may improve employee rights, but may not reduce them (favourability principle). Typical subjects include remote work, flexitime, and data protection in the use of digital tools.
Conclusion
The works council is a central element of workplace co-determination in Germany. For HR professionals, the key takeaway is this: the participation rights of the works council are not optional — they are a statutory requirement. Anyone who disregards them — for instance by issuing a dismissal without prior consultation — risks the legal invalidity of the measure. At the same time, the works council can be a constructive partner: early involvement, transparent communication, and clear works agreements lay the foundation for productive cooperation.
In the context of digital HR processes — from candidate selection to the use of aptitude assessment tools — involving the works council under § 87 para. 1 no. 6 BetrVG is a step that should be planned from the outset.
Would you like to learn more about fair, scientifically validated, and GDPR-compliant candidate selection that stands up to works council scrutiny? Learn more about objective aptitude diagnostics with Aivy.
Sources
- Works Constitution Act (Betriebsverfassungsgesetz, BetrVG). Federal Ministry of Justice, 2024. https://www.gesetze-im-internet.de/betrvg/
- BetrVG § 87 – Co-determination rights of the works council. Federal Ministry of Justice, 2024. https://www.gesetze-im-internet.de/betrvg/__87.html
- BetrVG § 99 – Consent in individual personnel matters. Federal Ministry of Justice, 2024. https://www.gesetze-im-internet.de/betrvg/__99.html
- BetrVG § 102 – Co-determination in dismissals. Federal Ministry of Justice, 2024. https://www.gesetze-im-internet.de/betrvg/__102.html
- Workplace co-determination. Federal Ministry of Labour and Social Affairs (BMAS), 2024. https://www.bmas.de/DE/Arbeit/Arbeitsrecht/Betriebliche-Mitbestimmung/betriebliche-mitbestimmung.html
- Fitting, K. / Engels, B. / Schmidt, I. / Trebinger, Y. / Linsenmaier, W.: Betriebsverfassungsgesetz – Handkommentar. 31st edition, Vahlen, 2022.
- DGB (ed.): Establishing a Works Council – A Guide for Employees. 2023. https://www.dgb.de/betrieb-und-tarifvertrag/betriebsrat
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