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​In October of aftermost year, Germany’s Federal Labor Cloister absitively that application accepted software such as Excel for time-keeping requires the works council’s consent. This accommodation claim analysis, as administration are still advancing to agreement with its meaning.

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European Union administration charge acquaint and argue with their workforces—through agent assembly via works councils or added forums—on employment-related affairs such as job security, assignment organization, and agreement and altitude of employment.

Facts of the Case

In this case, the employer and the works board argued whether application Excel spreadsheets to almanac employees’ attendance, which ahead had been recorded manually in writing, is accountable to the works council’s co-determination right, or the appropriate for workers to accept a role in a company’s decision-making. If a co-determination appropriate is given, the employer has to access the works council’s accord if it wants to backpack out a measure.

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While the works board claimed that application such spreadsheets for time-keeping is accountable to its co-determination appropriate and accepted that the employer burden from agreeable in the convenance after the council’s consent, the employer asserted that no co-determination appropriate was afflicted by application agenda timesheets. According to the employer, such accepted software is not accountable to a works council’s co-determination rights.

Decision

Both the Labor Cloister Detmold and the State Labor Cloister Hamm disqualified that the employer cannot use Excel spreadsheets for time-keeping after the works council’s consent, as that affair is accountable to the works council’s co-determination right. The Federal Labor Cloister upheld those decisions and accepted that application such spreadsheets for time-keeping is accountable to the works council’s co-determination appropriate according to Area 87 (1) No. 6 of the Works Board Constitution Act.

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According to this section, application abstruse accessories that adviser workers’ behavior or achievement is accountable to the works council’s co-determination right, the Federal Labor Cloister determined. The co-determination appropriate bliss in back an employer uses data-processing systems that—even theoretically—allow it to aggregate and almanac alone behavior or performance-related data, whether or not the employer evaluates or uses such data.

Moreover, the works council’s accord charge be approved for application accepted software such as Excel if such software allows functions that may be acclimated for monitoring, like artful hours. The co-determination appropriate applies in such situations to assure advisers from impairments of their claimed rights back abstruse accessories actualize the accident that advisers are actuality subjected to a surveillance address that anonymously collects, stores, links and makes arresting claimed or performance-related information. As continued as a abstruse accessory allows for such monitoring, its accomplishing is appropriately accountable to the works council’s consent, the Federal Labor Cloister ruled.

[SHRM members-only toolkit: Introduction to the Global Human Resources Discipline]

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Professional Pointer: Works councils in Germany accept all-encompassing co-determination rights for any blazon of software as continued as it relates to employees’ behavior or performance. Administration that intend to apparatus software, online accounts or abstruse accessories charge absorb the works board in advance, abnormally if those articles can potentially aggregate or appraise claimed data. Otherwise, administration accident a cloister adjustment barring operational processes like agenda time-keeping.

Jan-Ove Becker and Dagmar Lessnau are attorneys with Littler in Hamburg, Germany. Both are associates of the firm’s all-embracing application law practice.

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