Enforceable co-determination (§ 87 BetrVG)
§ 87(1) BetrVG contains an exhaustive catalogue of matters in which the works council has enforceable co-determination – if no agreement is reached, the conciliation committee decides bindingly (§ 87(2) BetrVG). Of practical importance are, among others: order of the establishment (no. 1), the start and end of working time and its temporary reduction or extension (nos. 2 and 3), technical devices for monitoring conduct or performance (no. 6), health-protection rules (no. 7), social facilities (no. 8) and company pay structure and performance-related pay (nos. 10 and 11).
Voluntary works agreements (§ 88) and occupational safety (§ 89 BetrVG)
§ 88 BetrVG lists subjects of voluntary works agreements – here the committee cannot be enforced. § 89 BetrVG governs the works council's involvement in occupational and environmental protection and cooperation with the authorities.
Why this is central to the conciliation committee
Because § 87 governs enforceable co-determination, it is the most common field for conciliation committees – from working time via electronic time recording and technical monitoring (IT systems, video surveillance) to pay structure and psychological risk assessment. Whether and how far a co-determination right reaches decides on jurisdiction and on the validity of an award.
This page provides neutral information on the legal situation. As chair of a conciliation committee I represent neither side – I guide employer and works council jointly to a balanced, legally sound arrangement.
LAG Cologne · 9th Chamber
Retrospective leave for a single employee: no case for a conciliation committee
Order of 24 November 2025 · Ref. 9 TaBV 36/25 · Section 100(1) sent. 2 ArbGG; Section 87(1) no. 5 BetrVG
Key point: A works council sought a conciliation committee on one employee’s retrospectively refused holiday request; the regional labour court held the committee to be manifestly without jurisdiction. Section 87(1) no. 5 BetrVG serves to reconcile the holiday wishes of several employees with one another and with operational needs – that collective dimension is absent where all that remains is to decide after the event whether past absences should count as leave; the second limb of the provision (fixing the timing of leave for individual employees) likewise requires that several employees be jointly affected. The works agreement on holiday planning, which expressly allowed either side to call the committee where a holiday request was refused, did not help either, since it too presupposes a weighing of collective interests that is still possible. Finally, the labour court was not entitled to recast the subject matter as general “conflict resolution”: the applicant must define it with sufficient precision – even for a voluntary committee – and may not leave that definition to the committee itself (lower instance: Labour Court Bonn, 6 BV 95/25).
Relevance in practice: Two lessons for the conduct of proceedings: a closed individual case is no vehicle for a conciliation committee, and the subject matter belongs precisely in the application. Widening it into an open “conflict resolution” invites rejection – and pay deductions or written warnings are outside the committee’s reach in any event.
Source: nrwe.justiz.nrw.de →
LAG Rhineland-Palatinate · 6th Chamber
Above-tariff allowances: "purely individual deals" does not block the conciliation committee
Decision of 2 December 2025 · case no. 6 TaBV 7/25 · § 100(1) sent. 2 ArbGG; § 74(1), § 87(1) nos. 10 and 11 BetrVG
Key finding: Where an employer bound by a collective agreement pays above-tariff allowances to roughly 15% of the workforce – almost exclusively managers – a conciliation committee on company pay structures is not manifestly without jurisdiction. The objection that every allowance rests on a purely individual decision must be substantiated case by case; a blanket assertion is not enough – all the more so because the reasons the employer itself gave (attracting applicants, retaining employees minded to leave, protecting pay after a downward transfer) point to abstract, general criteria and therefore to a collective set of facts. The subject matter may be framed broadly; in the appointment proceedings the works council need not state the content of the arrangement it seeks. The duty to negotiate first was also met – the written refusal to accept any co-determination right entitled the works council to treat negotiations as having failed – and jurisdiction of the central works council was not manifest precisely because the employer denied that any general arrangement existed (lower instance: Labour Court Koblenz, 4 BV 5/25).
Practical relevance: An employer seeking to fend off the appointment with "nothing but individual arrangements" must set out, for each case, the particular circumstances and the absence of any inner link to other employees; blanket submissions regularly lead to the committee being established, since the real examination of jurisdiction is for the committee itself. A side note worth keeping: the court corrected the chairman's misstated official title in the operative part – a reason to name the desired chair carefully in the application.
Source: landesrecht.rlp.de (Rhineland-Palatinate state law portal) →
LAG Düsseldorf · 12th Chamber
Mobile work: the employer determines the level of co-determination
Order of 21 January 2026 · Ref. 12 TaBV 66/25 · Section 100 ArbGG; Section 87(1) no. 14, Section 50 BetrVG
Key point: Where models of mobile work are offered uniformly across the company, the central works council is not manifestly without jurisdiction; the conciliation committee is established at that level. Because mobile work is a partially co-determined matter – the employer decides freely on the "whether", only the "how" is co-determined – the employer's choice of a company-wide arrangement also determines the level of co-determination and thus the competent body. The arrangement is a single subject matter and may not be split across several levels; individual home-office agreements already concluded do not create jurisdiction for the local works councils. The court raised the number of assessors to three per side (lower instance: Labour Court Düsseldorf, 15 BV 172/25).
Relevance in practice: An employer who offers mobile work uniformly across the company must also negotiate at company level – the objection "that is for the local works councils" will usually fail. For the conduct of the proceedings: settle the level of jurisdiction early and do not artificially divide the subject matter.
Source: nrwe.justiz.nrw.de →
LAG Cologne · 9th Chamber
No jurisdiction over the place fixing start and end of working time
Order of 1 July 2025 · Ref. 9 TaBV 25/25 · Section 87(1) no. 2 BetrVG; Section 100 ArbGG
Key point: The conciliation committee is manifestly not competent to determine the place whose reaching or leaving marks the start and end of working time. That is not a co-determined regulatory question but a legal question of interpreting existing contractual or collective rules (dispute over travel time from a car park relocated during construction work).
Relevance in practice: The decision marks the limit of Section 87(1) no. 2 BetrVG: the position and distribution of working time are co-determined, but treating the commute as working time is not. For the appointment of a committee (Section 100 ArbGG) this is the decisive test.
Source: nrwe.justiz.nrw.de →
BAG · 1st Senate
An opening clause creates no enforceable co-determination right
Order of 23 September 2025 · Ref. 1 ABR 20/24 · Sections 76(5), 87(1) no. 5, 77(3) BetrVG
Key point: A committee award (here on additional leave for long-serving staff) is void where its collective basis is only an opening clause under Section 77(3) sentence 2 BetrVG allowing merely voluntary works agreements. Such a clause creates no enforceable co-determination right – the committee cannot decide unilaterally under Section 76(5) BetrVG.
Relevance in practice: Before any procedure it must be clarified whether a matter is subject to enforceable co-determination (Section 87) or only to a voluntary arrangement. That distinction governs both jurisdiction and the validity of the award.
Source: bundesarbeitsgericht.de →
BAG · 1st Senate
Health protection: co-determination attaches to actual hazards
Order of 28 March 2017 · Ref. 1 ABR 25/15 · Section 87(1) no. 7 BetrVG; Sections 3, 5 ArbSchG
Key point: Co-determination under Section 87(1) no. 7 BetrVG together with Section 3(1) ArbSchG attaches to the existence of hazards that are either established or are to be determined through a risk assessment under Section 5 ArbSchG. The open-ended safety standard must be sufficiently concrete for a co-determined rule to be adopted.
Relevance in practice: Before a health-protection rule the hazard situation must be clarified – the risk assessment is both the anchor and the limit of co-determination.
Source: bundesarbeitsgericht.de →
BAG · 1st Senate
No provisional shift plan without consent via a committee award
Order of 9 July 2013 · Ref. 1 ABR 19/12 · Section 87(1) nos. 2, 3, (2) BetrVG; Section 76(2) BetrVG
Key point: A conciliation-committee award may not authorise the employer to implement a shift plan provisionally, without the works council's consent, until the committee decides. Co-determination over the position and distribution of working time (Section 87(1) nos. 2 and 3 BetrVG) persists even in urgent cases; a blanket provisional implementation power is impermissible.
Relevance in practice: Short-notice duty and shift changes need co-determined procedural rules – the employer cannot reserve unilateral implementation by award.
Source: bundesarbeitsgericht.de →
BAG · 1st Senate
Working-time recording: no works-council initiative right
Order of 13 September 2022 · Ref. 1 ABR 22/21 · Section 87(1) BetrVG; Section 3(2) no. 1 ArbSchG
Key point: Employers are already required by law to record the start and end of daily working time (Section 3(2) no. 1 ArbSchG). The works council therefore has no initiative right, enforceable by a committee award, to compel the introduction of an electronic time-recording system – the “whether” is prescribed by statute.
Relevance in practice: A landmark decision (the “time-clock” ruling); co-determination remains for the “how” of the arrangement, not the statutorily required “whether”.
Source: bundesarbeitsgericht.de →
BAG · 1st Senate
Headset system as a monitoring-capable device (Section 87 no. 6)
Order of 16 July 2024 · Ref. 1 ABR 16/23 · Section 87(1) no. 6, Section 50 BetrVG
Key point: A headset system that lets supervisors listen in on employees' communication is a device capable of monitoring and is subject to co-determination under Section 87(1) no. 6 BetrVG – even without recording or storage. What matters is the objective capability to monitor. Where introduced company-wide, the group works council is competent.
Relevance in practice: Confirms the broad reach of Section 87(1) no. 6 BetrVG for modern (real-time) systems – the mere capability triggers co-determination.
Source: bundesarbeitsgericht.de →
BAG · 1st Senate
Pay principles: excluding a group from a pay increase
Order of 21 February 2017 · Ref. 1 ABR 12/15 · Section 87(1) no. 10 BetrVG
Key point: If the employer excludes employees of certain business areas from a general pay increase, it changes the pay principles applying in the establishment – this is subject to co-determination under Section 87(1) no. 10 BetrVG. The employer may not unilaterally define the circle of benefiting employees.
Relevance in practice: Even deciding WHO receives a pay rise is a co-determined distribution principle – a frequent point of dispute in pay committees.
Source: bundesarbeitsgericht.de →
BAG · 1st Senate
Video surveillance: limits of a committee award (Section 87 no. 6)
Order of 11 December 2012 · Ref. 1 ABR 78/11 · Section 87(1) no. 6 BetrVG
Key point: Video surveillance is subject to co-determination under Section 87(1) no. 6 BetrVG. A committee award is nonetheless void if it disproportionately restricts the access options opened up by statute or official order. Where an administrative act obliges the employer to a specific measure, co-determination is limited accordingly.
Relevance in practice: Shows the limits of the co-determined design of video surveillance – statutory/official requirements prevail and the award must remain proportionate.
Source: bundesarbeitsgericht.de →
BAG · 1st Senate
Ban on private phone use: no co-determination (work conduct)
Order of 17 October 2023 · Ref. 1 ABR 24/22 · Section 87(1) no. 1 BetrVG
Key point: Where the employer bans private mobile-phone use during working time to ensure proper performance of work, the works council has no co-determination right under Section 87(1) no. 1 BetrVG. Such a ban concerns co-determination-free work conduct, not the co-determined order of the establishment (shaping the collective community).
Relevance in practice: Sharpens the key distinction between order-of-conduct and work conduct – decisive for phone/usage bans and conduct rules.
Source: bundesarbeitsgericht.de →
BAG · 1st Senate
Tolerating overtime breaches co-determination (Section 87 no. 3)
Order of 28 July 2020 · Ref. 1 ABR 18/19 · Section 87(1) no. 3, Section 23(3) BetrVG
Key point: Co-determination under Section 87(1) no. 3 BetrVG is breached not only by actively ordering but also by merely tolerating overtime. Such toleration exists where there are sufficient indications that the employer fails to take the required countermeasures and its inaction can be regarded as acceptance.
Relevance in practice: The employer must actively prevent overtime – merely letting it happen is enough for a breach and a works-council injunction claim.
Source: bundesarbeitsgericht.de →