Works Constitution Act (BetrVG), Germany

The works council co-determines introducing and using technical equipment intended to monitor employees' conduct or performance. According to settled Federal Labour Court case law since 1975, it is enough that a device is objectively suitable for such monitoring; the employer's intention is irrelevant. This covers CCTV, GPS and vehicle telematics, access and time recording systems, telephone and call recording systems, email and web filtering and logging, endpoint and screenshot or keystroke tools, productivity and scoring software, biometric terminals, HR and collaboration software that records usage, and AI tools that evaluate behaviour or performance. The employer may neither introduce nor change nor extend the use of such a device before agreement (normally a works agreement specifying purposes, data, evaluations, access, retention and prohibited uses) or a conciliation committee award; the council can obtain an injunction against unilateral introduction. Where a system is used company-wide the central works council is competent (s 50(1)); where a statute already compels the measure (such as recording working time under the Occupational Safety and Health Act) co-determination covers only the how, not the whether.

The employer informs the council comprehensively and in good time so it can perform its duties, including about people working in the establishment without an employment contract with the employer (duration, place and tasks of their assignment). On request the council gets the documents it needs at any time, including the contracts under which such workers are engaged; the works committee or a designated committee may inspect gross pay lists. The employer provides knowledgeable employees as informants where needed, taking the council's suggestions into account, unless imperative operational needs prevent it.

The employer carries out agreements with the works council, including those based on conciliation committee awards, unless agreed otherwise; the council may not act unilaterally in management. Works agreements are negotiated jointly, recorded in writing and signed by both sides (not required for an award); electronic works agreements must be signed electronically by both on the same document. The employer must make works agreements visible to staff at an appropriate location in the establishment (for example a noticeboard or intranet page).

Staff questionnaires need the council's approval, as do personal data items in standard written employment contracts and the drawing up of general assessment criteria (such as appraisal systems, competency models or performance scoring criteria); failing agreement the conciliation committee decides.