Point of law
AI and the works council's right of co-determination
For section 87(1) no. 6 BetrVG the objective capacity to monitor suffices, provided the data can be attributed to individual employees. Earlier than that right comes the duty to inform under section 90(1) no. 3 BetrVG, which has named the deployment of artificial intelligence expressly since 2021. And under section 80(3), second sentence, BetrVG calling in an expert is deemed necessary where artificial intelligence is concerned.
The pilot is scheduled, the involvement is not
An assistance tool is to be introduced in case handling. The supplier has been chosen, the pilot starts in four weeks, and the works council has received the invitation to a presentation. Whether participation has thereby been observed, and which of the three provisions apply at all, nobody has examined.
Not every system that logs is co-determined
When section 87(1) no. 6 BetrVG applies is answered wrongly in both directions. The Federal Labour Court requires no intention to monitor and lets the objective capacity suffice. It does require, though, that the information collected can be attributed to individual employees.
Two features, and both have to be present
Objective capacity
The system can collect or record information on conduct or performance. Whether the employer wants that is beside the point.
Attributability
The information can be attributed to individual employees. Where only the aggregate conduct of a group is captured, what matters is whether the pressure on the group reaches the individual.
Consequence
Where both are present, introduction and use are co-determined, and a measure introduced without participation is ineffective as against the employees.
3 von 3
With an assistance tool it is therefore the configuration that decides, not the product. A model processing enquiries without an identifier does not meet the second feature. The same model with a personal account and per-handler analytics does.
The duty to inform starts before introduction
From when the works council has to be informed is answered not by section 87 but by section 90 BetrVG, and that provision has named the deployment of artificial intelligence expressly in paragraph 1 no. 3 since 2021.
Three points in time, in the order of the statute
At the planning stage
Information under section 90(1) BetrVG
In good time and with the necessary documents. The provision attaches to the planning, that is, to a point before the selection.
Before the decision
Consultation under section 90(2) BetrVG
In time for proposals and concerns to be taken into account in the planning. A presentation of the finished system does not meet that.
Before introduction and use
Co-determination under section 87(1) no. 6 BetrVG
Provided both features are present. This right is the best known of the three and at the same time the latest.
For artificial intelligence the expert is deemed necessary
When the works council may call in an expert has, for this subject matter, been settled by statute since 2021. Section 80(3), first sentence, BetrVG otherwise requires an agreement and necessity. The second sentence removes the second of these where artificial intelligence has to be assessed.
What the second sentence changes and what it does not
| Without the second sentence | Merkmal | For artificial intelligence |
|---|---|---|
| To be establishedThe works council has to explain why it cannot supply the expertise itself. | Necessity | Deemed presentSection 80(3), second sentence, BetrVG. The objection that the expert is unnecessary is thereby excluded. |
| Required | Agreement | Still requiredOn the person, the scope and the fee. The second sentence does not replace the agreement. |
| Not provided for | Standing expert | PossibleThe third sentence allows agreement on a standing expert in these matters. |
| Through section 79 BetrVG | Confidentiality | Through section 79 BetrVGSection 80(4) BetrVG applies it accordingly, and that is the objection most often raised against calling anyone in. |
For the employer it follows that the argument is no longer about whether but about scope and cost. Recognising that early shortens the process.
How we support you with employee representation
The three provisions can be set out in one overview that doubles as the project timetable. For each provision it records what has to be handed over, at which point of the project that happens, and who is answerable for it. For section 87(1) no. 6 BetrVG the assessment of the two features is added, and its result belongs in the same overview. Drawn up before the selection, participation is no longer an obstacle but a date.
Frequently asked questions
Does co-determination apply to a tool with no analytics?
Yes, where it is objectively capable of collecting information on conduct or performance and the data can be attributed to individual employees. Under the case law of the Federal Labour Court an intention to monitor is not required. Where attribution is absent, co-determination under that provision is regularly absent too.
Does the employer pay for the expert?
The employer bears the costs once an agreement under section 80(3), first sentence, BetrVG has been reached. Section 80(3), second sentence, removes the employer's objection that the expert is unnecessary where artificial intelligence is concerned, but not the requirement of an agreement on the person, the scope and the fee.
What happens without participation?
A measure introduced without co-determination is ineffective as against the employees, and the works council can demand that it be stopped. In data protection terms the legal basis is missing at the same time, where the processing was to rest on a collective agreement under Art. 88 GDPR.
Is an existing IT framework agreement enough?
Only where it covers the actual deployment. An agreement concluded before artificial intelligence was deployed describes neither the classes of data nor the analytical capabilities of the new system. It is then not a subject-matter rule but a gap with a heading.
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