Mitbestimmung bei der Entgeltgestaltung

The scope and limits of the works council’s right to participation in remuneration matters are still subject to controversy. By imposing what it refers to as "betriebsverfassungsrechtlich freiwillige Gesamtvergütung" on companies which are not bound by collective bargaining agreements, the Federal Employment Court has substantially extended the role of the works council in the pay award process. As justification therefor, the Federal Employment Court underlines the necessity of “distributive justice” as co-determination objective, without defining what this actually means.
The author addresses this issue, arguing that works council involvement on pay is a procedural answer to the problem of how to ensure fair treatment across the workforce. In the light of this “procedural justice”, the author critically examines recent decisions by the Federal Employment Court, showing that it often takes insufficient account of what both parties – the employer and the works council – truly wanted to achieve and regulate. The author, an employment lawyer in Germany, promotes a stronger observance of both parties’ will and intentions.