Works agreement and desk sharing: Is the co-determination of the works council really necessary?

In the modern world of work, characterized by digitalization, home office and agile working methods, desk sharing is becoming increasingly popular. This involves several employees sharing a workstation instead of having a fixed desk. This flexibility is intended to save costs, promote collaboration and meet the needs of hybrid working models. But what does desk sharing mean for the co-determination of the works council? Is a works agreement mandatory? This blog article highlights the legal, practical and social aspects of this question – including the legal uncertainties.

What is desk sharing and why is it being introduced?

Desk sharing, also known as a shared desk policy, describes the organization of workplaces in which employees do not have a fixed desk but use a workplace as needed. The advantages of this model are:

• Cost savings: Less office space and equipment are needed.
  
• Flexibility: employees can work from different locations.
• Promoting collaboration: teams sit next to each other depending on the project.
• Sustainability: resources are used more efficiently.

Despite these advantages, desk sharing also brings challenges, such as uncertainty among employees or the feeling of no longer having “your own” place.

In terms of individual rights, desk sharing is basically unproblematic: employees are not entitled to a fixed, “own” workplace. Within the scope of his right to issue instructions in accordance with § 106 of the German Industrial Code (GewO), the employer can order desk sharing unilaterally, provided that the basic information requirements under § 81 (2) of the German Works Constitution Act (BetrVG) are met.

Under collective law, however, the co-determination rights of the works council may apply, depending on the specific design of the model. In the following, these legal bases will be considered both in overview and in detail.

Overview of the legal basis for desk sharing in accordance with the German Works Constitution Act

The co-determination rights of the works council under the German Works Constitution Act (BetrVG) are a key point when it comes to introducing desk sharing. The following are particularly relevant:

• § 87 (1) no. 1 BetrVG: Regulation of the order in the company, including specifications for the use of workplaces.
• § 87 (1) no. 6 BetrVG: Introduction and use of technical facilities such as booking systems or sensors.
  
• Sec. 87 (1) no. 7 BetrVG: Occupational health and safety measures, such as ergonomic workplace design.
• Sec. 90 BetrVG: The works council's right to be informed and consulted when workplaces are being planned.
• Sec. 111 BetrVG: Regulations on operational changes if desk sharing is part of a larger restructuring.
  

The detailed interpretation and application of these paragraphs in the context of desk sharing is described in the next section.

Legal bases: Co-determination rights of the works council explained in detail

§ 87 para. 1 no. 1 BetrVG: Order in the company

“Insofar as there is no legal or collective agreement, the works council has a say in the following matters: 1. Questions of the organization of the company and the behavior of employees in the company.”

This paragraph regulates the co-determination of the works council in measures that affect the behavior of employees in the company, provided that these are not already conclusively regulated by legal or collective agreements. In the context of desk sharing, it could be interpreted that the works council must be actively involved in shaping the organization of the company, especially when new rules for the use of workstations are introduced.

Controversial:

However, the Higher Labor Court of Düsseldorf ruled that desk sharing is more a matter of work behavior than of organizational behavior and is therefore not subject to § 87 (1) no. 1 BetrVG.

§ 87 (1) no. 6 BetrVG: Introduction and use of technical facilities

“The works council shall have co-determination in the following matters where no statutory or collective agreement provision exists: 6. introduction and use of technical facilities intended to monitor the behavior or performance of employees.”

This paragraph covers technical facilities that can potentially monitor employee behavior or performance, such as booking systems, sensors or cameras. In the context of desk sharing, this particularly concerns digital tools for booking workplaces or systems that collect data on workplace occupancy.

Controversial:

It is not always clear whether technical systems used in the context of desk sharing fall under this regulation. In particular, booking systems without a monitoring function could be considered as purely supportive. However, it is often difficult to draw the line between technical support and monitoring. However, if there is no electronic booking tool for searching and booking workplaces, then, according to the Higher Labor Court (Landesarbeitsgericht, LAG), the works council has no right of co-determination.

§ 87 Abs. 1 Nr. 7 BetrVG: Occupational health and safety measures

“The works council has a say in the following matters, insofar as there is no legal or collective agreement: 7. Regulations on the health protection of employees in the workplace.”

This paragraph regulates measures that ensure the health and safety of employees. According to this paragraph, the works council has a right of co-determination with regard to regulations for the prevention of occupational accidents and occupational diseases, as well as for the health and safety of employees. However, the link between health and safety and desk sharing is not always clear. While compliance with health standards is clearly regulated, it remains unclear whether specific regulations for desk sharing fall under these paragraphs.

Controversial:

The Higher Labor Court of Baden-Württemberg has rejected the works council's right of co-determination under § 87 (1) no. 7 of the German Works Constitution Act (BetrVG) when desk sharing is introduced. The court justified this by stating that the sole introduction of desk sharing does not lead to a specific risk to employees. It was determined that the daily cleaning of workplaces and the use of personal equipment by employees rule out a specific health risk.

Section 90 of the German Works Constitution Act (BetrVG): Rights to information and consultation

“The employer shall inform the works council in good time about the planning [...] of workplaces, submitting the necessary documents.”

This section obliges the employer to inform the works council comprehensively and in good time about planned workplace design measures. The aim is to incorporate possible suggestions and concerns of the works council into the planning.

The duty to inform is clearly regulated. Nevertheless, it remains unclear how deeply the works council must be involved in the planning and whether this automatically triggers co-determination rights under other paragraphs.

§ 111 BetrVG: Operational Change

“The employer [...] has to negotiate [...] a reconciliation of interests [...] with the works council [...] in the event of planned significant changes [...].”

This paragraph concerns comprehensive changes in the company that have a significant impact on the workforce, such as relocations, job cuts or fundamental restructuring. Desk sharing could constitute a change in operations if it is part of a larger office redesign.

Whether desk sharing alone can be considered a change in operations depends on its scope and specific design. The classification is often a case-by-case decision and is handled differently in practice.

Is a company agreement always necessary?

Whether a company agreement is necessary depends on various factors, in particular the size of the company, the type of measure and the existing regulations in the German Works Constitution Act (Betriebsverfassungsgesetz, BetrVG).

Advantages of the works council's co-determination

The involvement of the works council has the following advantages for the workforce:

1. Acceptance among employees: The involvement of the works council ensures greater acceptance because the interests of the workforce are taken into account.
2. Transparency and fairness: A company agreement creates clear rules and avoids conflicts.
3. Legal certainty: A company agreement can minimize the risk of lawsuits for data protection violations or unreasonable working conditions.

Practical implementation: What should be included in a company agreement?

A well-thought-out company agreement should cover the following points:

• Objectives and framework conditions: Why is desk sharing being introduced? Which areas are affected?
• Rules for workplace use: How are workplaces booked? Are there exceptions?
  
• Data protection: How is data processed? Who has access?
• Workplace design: Are ergonomic workplaces and retreat areas available?
• Evaluation: How and when is the model reviewed?

Conclusion: Controversial legal situation requires cooperation

Desk sharing is a modern office concept that brings both opportunities and challenges. The legal classification is complex because the application of the co-determination rights of the works council is controversial in many cases. Companies should involve the works council at an early stage to avoid uncertainties and promote employee acceptance. A well-thought-out company agreement that regulates data protection, workplace design and conflict management can help to successfully introduce desk sharing. Through cooperation and clear communication between the employer and the works council, legal risks can be minimized and employee satisfaction increased.

Please note: Our content is intended solely for the purpose of providing information and does not constitute legal or tax advice. All content is compiled with the greatest possible care. However, it does not replace binding advice and does not claim to be correct or complete. No liability is assumed. For individual advice, please contact a lawyer or tax advisor.