Co determination in cases of salary increases for a fully released works council member

On 26 November 2024, the Federal Labour Court (BAG) ruled (1 ABR 12/23) that increasing the remuneration of a fully released works council member on the basis of statutory protection provisions does not constitute a job classification or reclassification within the meaning of § 99 BetrVG. Such a classification or reclassification requires an assessment of the employee’s actual duties and an assignment to a pay group. However, no assessment of work tasks takes place when adjusting the remuneration of released works council members.

If the remuneration of a released works council member is increased pursuant to § 37 (4) BetrVG or § 78 sentence 2 BetrVG, this adjustment is not carried out by assigning the employee to a collective pay scale. Instead, it is based on a comparison with the hypothetical career development of comparable employees (§ 37(4) BetrVG) or serves to ensure that the works council member does not suffer disadvantages as a result of holding office (§ 78 sentence 2 BetrVG). Because this adjustment is mandated by law and not made at the employer’s discretion, the works council has no co determination rights.

Practical relevance:

The decision provides clarity: Remuneration adjustments for released works council members that are made solely to comply with the statutory requirements pursuant to §§ 37(4) and 78 sentence 2 BetrVG are not subject to co determination under § 99 BetrVG.

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