The amendment and recast of the Baden-Württemberg State Staff Representation Act
While the amendment in December 2013 still attracted attention, the new announcement in March 2015 went almost unnoticed, creating sources of error in the application of the law. The main changes to the LPVG are outlined below, taking into account the new numbering.
Scope of application
The scope of application of the LPVG BW remains unchanged. According to Section 1 LPVG, the LPVG applies in the administrations and companies of the state, the municipalities and associations of municipalities, as well as other corporations, institutions and foundations under public law that are subject to the supervision of the state, as well as in the courts of the state. Pursuant to Section 10 LPVG, staff councils must generally be formed for at least five employees entitled to vote. Whether a staff council exists depends on the willingness to actually elect it.
Overview of the changes
Definition of employee
Whereas previously employees within the meaning of the LPVG were essentially civil servants, employees and trainees, Section 4 LPVG establishes a new definition of employees. There is a definition of employee in the first half-sentence of Section 4 (1) No. 1 LPVG that is not otherwise found in the law. According to Section 4 (1) No. 1 LPVG, employees are persons who are integrated into the work organization of the office and work within it in accordance with instructions or are employee-like persons within the meaning of Section 12 a TVG.
Eligibility, size, term of office, training entitlement and number of leaves of absence
Up to now, anyone who has been employed in the public administration or its operations for one year, has been a member of their highest service authority for at least six months and is at least 18 years old was eligible for election. Section 9 of the new LPVG provides for eligibility for election on the election date if the candidate has been employed by the department for two months and is at least 18 years old.
The size of the staff council has also been changed depending on the number of employees. Whereas previously a staff council consisted of one person if there were at least 5 - 20 employees entitled to vote, in future the staff council will consist of one person if there are only 5 - 14 employees entitled to vote in accordance with Section 10 (3) LPVG. From 15 - 50 employees entitled to vote, a staff council with three members must be formed.
The term of office has been extended from four years to five years in accordance with Section 22 (1) LPVG.
Not only staff council members but also substitute members are entitled to training in accordance with Section 44 LPVG if it is to be expected that they will be permanently replaced in the foreseeable future or at least regularly join the staff council as representatives. The entitlement to time off for further training with continued payment of remuneration exists if the training or educational event imparts knowledge that is necessary for the staff council's activities.
The number of members granted leave of absence has been improved in favor of the staff councils. Whereas previously only one staff council member was granted full leave for staff council activities if the number of employees exceeded 600, in future, in accordance with Section 45 (1) LPVG, leave will be granted to the extent of one full-time employee if the number of staff council members exceeds 9, i.e. if the number of employees exceeds 300.
Adoption of resolutions
In order to pass a resolution effectively, at least half of the staff council members must be present in accordance with Section 34 (2) LPVG. In future, the chairperson can pass resolutions in simple matters by written circulation procedure in accordance with Section 34 (3) LPVG if the other members do not object. What exactly is meant by "simple matters" is to be regulated in the rules of procedure. The circulation procedure allows for simplified decision-making outside of meetings. If a member of the Staff Council objects, a resolution must be passed in person at a meeting.
Co-determination
The co-determination rights of the Staff Council have been extended. An unrestricted right of co-determination was newly introduced for the introduction, application, significant change and abolition of working time models pursuant to Section 74 (2) No. 3 LPVG, for the ordering of overtime or extra hours, on-call duty and on-call duty pursuant to Section 74 (2) No. 4 LPVG as well as a right of co-determination in measures of official or company health management including preparatory and preventive measures, general questions of official or company integration management and measures based on findings from risk analyses pursuant to Section 74 para. 2 no. 8 LPVG.
Within the scope of unrestricted co-determination, the conciliation committee makes a final and binding decision pursuant to Section 78 (2) LPVG in the event that the staff council and the highest service authority do not reach an agreement.
If there is a case of limited co-determination, the conciliation committee only makes a recommendation to the highest authority in accordance with Section 78 (4) LPVG. The final decision is the responsibility of the highest department.
The scope of limited co-determination has been extended by the amendment. This now also includes ancillary agreements to the employment contract in accordance with Section 75 (1) No. 2 LPVG, classification above the pay scale in accordance with Section 75 (1) No. 3 LPVG, reassignment of activities after returning from a longer period of leave, e.g. from parental leave in accordance with Section 75 (1) No. 9 LPVG. § Section 75 para. 1 no. 9 LPVG, chain secondments pursuant to Section 75 para. 2 no. 5 LPVG, new forms of work organization and significant changes to work organization pursuant to Section 75 para. 4 no. 17 LPVG are matters of limited co-determination. It is worth noting that even a significant change to the employment contract, with the exception of a change to the agreed working hours, is subject to co-determination pursuant to Section 75 (1) No. 10 LPVG. The employer must therefore ensure that the staff council is involved in every significant amendment to the employment contract in order to avoid running the risk of a contract amendment being invalid simply because the staff council has not been involved.
While the previous version of the State Staff Representation Act still provided for a catalog of grounds for refusal of consent in the event of ordinary dismissals, these are no longer included in Section 75 (1) No. 12 LPVG. Accordingly, the staff council must have a say in the event of ordinary dismissal by the department. Irrespective of the elimination of the grounds for refusing consent, the staff council must state reasons in writing within 3 weeks (§ 76 Para. 6 LPVG) in the co-determination procedure pursuant to § 76 Para. 9 LPVG if it wishes to effectively refuse consent, which have an obvious connection to the dismissal. If it fails to do so, the measure is deemed to have been approved in accordance with Section 76 (9) sentence 1 LPVG.
There are also circumstances in which the staff council can exercise limited co-determination rights at the request of the employee. Pursuant to Section 76 (3) LPVG, employees must be informed of the measure in good time and made aware of their right to request or object. What is new in this context is the possibility for employees to request the involvement of the staff council when concluding a termination agreement pursuant to Section 75 (3) No. 11 LPVG. Before concluding a possible termination agreement, the employer must therefore inform the employee of its intention and of the possibility of requesting the involvement of the staff council.
Prior consent
Pursuant to Section 73 (2) LPVG, the staff council may give its prior consent to measures in previously defined individual cases or for previously defined groups of cases. § Section 73(2) LPVG is an exception to this rule, as the staff council is generally informed before the measure is taken and can make a decision. The provision must therefore be interpreted narrowly. The purpose of the provision is to speed up and simplify the co-determination procedure in simple routine cases. The staff council's rules of procedure must specify which cases are to be subject to prior approval. The cases of prior approval must be announced to the staff council at the next meeting.
Service agreement
According to the new version of the LPVG, a service agreement can be terminated by either party with a notice period of three months in accordance with Section 85 (5) LPVG, unless a different notice period has been agreed.
Conclusion
The co-determination rights of the staff council have been significantly extended. Particularly noteworthy are the circumstances of a material change to the employment contract pursuant to Section 75 (1) No. 10 LPVG and the possibility for employees to request the involvement of the staff council before concluding a termination agreement pursuant to Section 75 (3) No. 11 LPVG, which the employer must have pointed out in advance. If the employer is unaware of these provisions, it runs the risk of being exposed to the objection that the contract is invalid due to insufficient staff council involvement. The risk is considered to be particularly high as these everyday measures could previously be carried out without the involvement of the staff council.
It is to be criticized that the legal consequences of disregarding staff council participation have not been clarified, so that the parties are still unclear about the legal consequences they must expect in the event of errors in the participation procedure. Nor has a comprehensible structure been created as to what the involvement of the staff council looks like depending on the intensity of its right of co-determination. The user is lost in the jungle of the various co-determination facts (restricted, unrestricted co-determination and consultation) and countless references and finds it difficult to find his way around.