Goal agreement and work council

RA Jean Martin young, director/conductor of the forum “industrial law with openBC (1900 members) (openPR) - participation rights and courses of action of the work council with goal agreements

1.
Participation when introduction, organization and change achievement-referred remuneration systems

An extensive right of codetermination comes to the work council during the introduction and contentwise arrangement of the variable achievement remuneration system.

The following rights of participation in the special one are to be considered:

• Informing and consulting right in accordance with § 80 BetrVG

§ a comprehensive informing and consulting right assures 80 BetrVG to the work council regarding all interests, which are for the practice of its tasks of importance.

• § 87 exp. 1 No. 1 BetrVG

Although so far decided of the supreme court 1 No. 1 BetrVG on goal agreements might not to be proceeded have from the applicability § 87 exp. Therefore questions are participation needy over the circle of acquaintances who can be seized from the goal agreement to as well as for the implementation of the goal agreement to developing rules of procedure, since it concerns questions of the order of the enterprise and the behavior of the employees in the enterprise in the sense § 87 exp. 1 No. 1 BetrVG.

• Participation after § 94 BetrVG

If in the context of the implementation of a achievement-referred remuneration system personnel questionnaires are used, a right of codetermination comes to the work council in accordance with § 94 exp. 1 BetrVG. The right of codetermination of the work council covers the agreement for the contentwise arrangement of the questionnaires. If these are only once fixed, the agreement of the work council is in individual cases no longer necessary for the use.

Besides the work council can contribute 2 BetrVG the definition of general evaluation principles in accordance with § 94 exp. Its right of codetermination extends thereby to the arrangement of the entire evaluation procedure.

Pretty often a performance review is made on the basis certain characteristic numbers („balanced scorecard “). The work council is justified in accordance with § 87 exp. 1 No. 6 BetrVG to contribute the contentwise organization of storage and processing program and in particular the intended purpose of the thereby won data.

2.
Participation after § 87 exp. 1 No. 10 and 11 BetrVG

2.1 § 87 exp. 1 No. 10 BetrVG

A right of codetermination comes to the work council in accordance with § 87 exp. 1 No. 10 BetrVG with the introduction, change or abolishment of a achievement-referred remuneration system.

This applies anyhow so far it around the introduction, change or abolishment of framework regulations, which are then closed as single or total employment agreement, acts. To it all regulations, which prescribe fundamental for the work contract, belong as for instance the modalities of the goal determination, the kinds of computation or also the engagement of an arbitration board in controversies.

Goal agreements with the individual coworker are closed. Also the coworker goals at the respective job and not the individual person of the coworker align themselves. This will would clearly require to it that the employer of each coworker, with it agrees upon a certain job, the same Zielerreichung. Also the agreement of Zielerreichungen with the coworker gets thereby a collective framework, so that they fall under the participation facts § 87 exp. 1 No. 10 BetrVG.

The moreover one also the decision is over the restructuring of the past remuneration system a question of the operational Lohngestaltung and thus participation requiring. Decisions are covered over it within which ranges goal targets are to be hit and on which fundamental procedures and concepts these depend.

The concrete and specific arrangement of this framework regulation by concrete goal agreements with the respective employee, in which the goals are contentwise specifically specified at employees, job and task of work aligned, is however participation-free. The coworker can require nevertheless a participation of the work council for the keeping of his interests.

Notice: For a right of codetermination of the work council after § 87 exp. 1 No. 10 BetrVG it is decisive that the variable remuneration is dependent on general, collective characteristics. This is already the case if basis of the remuneration the concrete achievement of the coworker is, since these for the statement, which a normal, a mindest or a less achievement are always the comparison with other coworkers presuppose.

2.2 § 87 exp. 1 No. 11 BetrVG

Very many more problematic however the question about a right of codetermination of the work council and its range presents itself 1 No. 11 BetrVG, which itself on participation during the arrangement of the remuneration methods and in accordance with § 87 exp. - principles when „genuine “achievement-referred repaying refers.

A right of codetermination after § 87 exp. 1 No. 11 BetrVG is possible, if it concerns genuine piece wages, how it is for instance with many working group concepts with goal agreements in the industriellen production the case. In contrast to a right of codetermination after § 87 exp. 1 No. 10 BetrVG can take the work council to influence on the remuneration height here.

These opposite § 87 exp. 1 No. 10 BetrVG extended powers result from the dependence of the employee on a subjective evaluation of its person from the direct high-level personnel and the uncertainties exerted by it. A compensatory protection is to be ensured by an intensified participation of the work council to the employee.

The work council can be right of codetermination force, because the effectiveness of a one-sided decision of the employer depends on the agreement of the work council.

A condition for this extended requirement for participation is being present a measurable achievement. Whether this is with a variable remuneration due to a goal agreement the case is contentiously discussed.

Because the height of the achievement-oriented payment will not always align itself at the concrete achievement of the individual employee. Frequently the Gehaltszuschlag depends in the long run on the reaching of a range or company target, which the particular can affect only limited. Above all however the question becomes whether the goal was in the long run achieved and in which measure on an individual valuation of the high-level personnel to be dependent.
A right of codetermination of the work council in accordance with § 87 exp. 1 No. 11 BetrVG is rejected predominantly in the literature therefore.

Nevertheless no way might lead past at present the iurisdiction of the BAG, which represents the view, which hangs height of the wages directly of the achievement of the individual employee off and accordingly from a right of codetermination of the work council proceeds.

The employer will have itself to adjust thus to the fact that the work council of this right of codetermination use will want to contribute to make and during the definition the goal agreement determining basic conditions.

3.
Achievement remuneration and participation with in and regrouping

In or regrouping affects in substantial measure the height (variable) of the requirement for wage. Therefore the work council is to be taken part in the decision over an in or a regrouping.

The work council is to be informed about the planned measures; to it information about range and effects of the measure belongs just like the collecting main of the documents concerned.
The work council can block the decision if necessary, however the Verweigerung of the agreement is permissible only for the reasons specified in § 99 exp. 2 BetrVG. To it belong for instance the offence of the measure against the collective agreement or an employment agreement, the not justified disadvantage of individual employees or the fear that the measure entails notices.

If with in or regrouping negative social effects for the coworker are connected, also a Initiativrecht comes to the work council apart from its passive right to object.

4.
Courses of action of the work council with not reached achievement goals

4,1 courses of action in the controversy

If a coworker does not achieve it set goals, completely different reaction possibilities can stand for the work council openly. The spectrum is enough thereby a hearing under participation of the work council, renewed by the inspection into the evaluation documents over the participation in the goal reaching discussion and/or.

The courses of action of the work council depend on whether the coworker is not the estimate, the goal reached, divides or not. Within the range of the individual-legally hit goal target the work council can intervene due to the contract autonomy frequently only when desired the employee. It is missing to it then at the so-called Initiativrecht.

So the work council is to be taken part in the goal reaching discussion only when desired the coworker compellingly. Since this will not have a cause before the relevant goal reaching discussion not to classify its goals as reached he will come closer only after - from view of the employee negative process - the goal reaching discussion to the work council. This has then the possibility of working toward a renewed discussion under its participation.

Even if no agreement can be obtained here, the work council has the possibility of requiring insight into the documents relevant for the evaluation.

A procedure going beyond that will depend above all on as the role of the work council for the controversy is intended for goal agreement in the basic conditions.

4,2 possibilities for the goal adjustment

If e.g. in a department above average many goals are not achieved, the question will arise whether an adjustment of the goal agreement does not have to take place.

If the adjustment refers only to the concrete arrangement of the goals, the work council can give only suggestions and make itself strong at the employer for an adjustment, by referring to the remarkable inclination and the excessive demand of the coworkers. To force it does not know a contentwise change in the long run however, since this has to take place alone via employers and employees as contracting parties.

An above average Nichterreichung of the agreed upon goals knows their cause - in particular in the case of behavior-oriented goals - in addition, in the agreed upon modes for the measurement of the goal reaching degree to have. Because differently than achievement-referred goals the measure of the Zielerreichung depends third (usually the direct high-level personnel) here on the evaluation through. Since the modalities of the goal reaching measurement belong to the general basic conditions of the goal agreement, the work council can negotiate here independently with the employer about an adjustment.

5.
Right one of the work council in connection with the implementation and execution of goal agreements

Also during the goal agreement first an extensive right of codetermination comes to the work council - as generally with the introduction, organization or change of a achievement-referred remuneration - during the definition of the general basic conditions. So the work council in all definitions and modalities are to be taken part concerning the computation of the achieved goals likewise as in the agreements over an in-plant arbitration of arguments. In individual cases the work council can exert influence perhaps even on the height of the variable remuneration.

5,1 participation after § 94 BetrVG

If in the context of the implementation of a goal agreement system personnel questionnaires are used, a right of codetermination comes to the work council in accordance with § 94 exp. 1 BetrVG. The questionnaire in two variants will emerge: As form for goal agreement and as goal control form. The right of codetermination of the work council covers the agreement for the contentwise arrangement of the questionnaires. If these are only once fixed, the agreement of the work council is in individual cases no longer necessary for the use.

Besides the work council can contribute the definition of general evaluation principles in accordance with § 94 BetrVG. The measurement, in what respect the set up goals were achieved, represents a general performance review principle. Because this evaluation cannot take place without consultation of uniform, verobjektivierter criteria. The work council can participate in the definition of these criteria therefore contentwise. Its right of codetermination extends thereby to the arrangement of the entire evaluation procedure, in particular to the following questions:

• Who judges whom on the basis which criteria

Definition, by whom the evaluations are to be accomplished, which Beurteilunsgkriterien is to be availed, - methods and - of yardsticks thereby, and in which time intervals the evaluations are to be made.

• As evaluation discussions are to be accomplished

Admission of a model contract over substantial corner points of the evaluation discussion, e.g. during periods, consultation of the work council.

• As is to be proceeded in the case of controversy

To whom can the coworker turn in the conflict Which rights does it possess Does an in-plant arbitration of arguments procedure intervene

5.2 § 87 exp. 1 No. 6 BetrVG

Pretty often a performance review is made on the basis certain characteristic numbers („balanced scorecard “). The work council is justified in accordance with § 87 exp. 1 No. 6 BetrVG to contribute the contentwise organization of storage and processing program and in particular the intended purpose of the thereby won data.

Problems will above all place themselves here, if apart from individual coworker goals additionally team or group goals is agreed upon and their goal reaching degrees are stored electronically. Can the goal agreements themselves be made accessible or still large the determined results for the remaining team or group coworkers If necessary is a feed in the Intranet conceivable

Already for data security-legal reasons - limited although - the disclosure of such data is most problematic. Perhaps from the publication of the individual coworker-referred goal agreements the remaining coworkers can draw conclusions on the goal reaching degree. This all the more applies to the publication of the Zierreichung themselves.

Besides the disclosure of personal achievements for the individual coworkers can affect itself most loading and create such a bad, unproductive working climate, because individual coworkers see themselves suspended to unpleasant demands of other team members.

If this can be justified within a team or a group still with the fact that weak points can be concerned in this way during the work distribution concretely and be analyzed within the group, then a publication in the Intranet could hardly be agreed with the purpose of the employer-employee relationship.

Here by the employer a high measure of sensitivity will be required anyhow.

For a right of codetermination of the work council no area, if a relevant legal or tariff-contractual regulation exists, is § 87 exp. 1 BetrVG. A sufficient agency of the interests of the employees takes place here already on superordinate level, so that it does not require the protection by the work council.

Hereby the right of codetermination of the work council is by far not yet exhausted however. If the work council was involved not already in the elaboration of the targets, it has to supervise anyhow the conversion - perhaps tariff-contractually specified - of the agreements.

6.
Rights of information with goal agreements

The work council has a general right of information out § 80 exp. 2 P. 1 BetrVG, which is to make the perception for it possible it coming tasks. The existence of a requirement for information presupposes thus a specific purchase to the tasks of the work council.

6.1 existence of a requirement for information

Such is present with the introduction, organization or change of goal agreement because of its direct effects on the requirement for payment of the employees. Therefore is employers fundamental in accordance with § 80 exp. 2 sentence 1 BetrVG obligated, which work council in time and comprehensively over all procedures, which in connection with the introduction to inform the execution or change of achievement-referred remuneration systems stand.
As far as the employer will not already do this on its part, a requirement for information of the work council exists.

6,2 range of the requirement for information

Requirement for information of the work council and corresponding obligation to information of the employer do not exist however without reservation. They are formed out and limited by the function, which comes to the information in the context of the fulfilment of the work council with its tasks. It is to be examined thus on a second stage - on first is the existence of a requirement for information because of being present a task of the work council to examine -, the work council actually needs which information for the fulfilment of its task.

7.
Participation with selection guidelines and evaluation principles

A right of codetermination comes to the work council in accordance with § 87 BetrVG during the definition of general selection guidelines and evaluation principles.

Because one regulates here generally obligatorily, how the measure of the Zielerreichung is to be determined exactly. Thus aforementioned regulations have direct influence on the height of the variable remuneration portion in the long run actually which can be paid and to fall therefore under the term of the Lohngestaltung in the sense § 87 exp. 1 No. 10 BetrVG.

8.
Participation rights of the work council with goal agreement discussions

Just as the employee can draw the work council to the evaluation discussion, this is to be taken part also in the goal agreement discussion as actus contrarius.

However here only a reduced right of participation comes to the work council. Usually he already could notice the interests of the coworkers in the context of the agreement of the operational basic conditions for the goal agreements or this is on tariff-contractual level happen.

Besides the work council has the possibility already in the context of the introduction of a variable achievement remuneration system of taking on the organization of the coworker discussion as a substantial component of the operational sequence for the calculation of the goal reaching degree influence. Since for the task of the work council in addition, the monitoring is tariff-contractually or operationally agreed upon operational sequence, it is to be taken part when desired the employee also in the goal agreement as well as goal reaching discussion. Only so it can supervise sufficiently whether the met agreements of the employer are converted also accordingly.

To goal reaching discussions it applies to doubts that the achievement of the coworker can be usually judged at the best one by him and its direct superiors, since these stand for the achievement next. Therefore regularly use is to be made by consultation of the work council only if no agreement can be attained by means of the Zielerreichung between critics and judgment or the latter has concrete doubts about the correct conversion of the goal reaching procedure.

Jean Martin young
Attorney
(Training representative SRH FH Heidelberg/FH Ludwigshafen)

Director/conductor of the forum “industrial law with openBC (1400 members)
www.openbc.com/net/arbeitsrecht/

Law office young
Karl Ludwig Str.29

68165 Mannheim

Tel.: 0621-420180
Fax: 0621-4201823
Mobil: 0178-8 535,717

www.KanzleiJuenger.de

The emphasis of the vocational activity of RA young is on the area of the industrial law. Thus it is to employers, work councils as well as employees as a legal adviser in affairs pertaining to labour law at the disposal and represents these within all ranges judicially. By the correspondence office in Miami, Florida it is occupied with that international private law. The moreover he is an author in the range pertaining to labour law as well as director/conductor of the forum „industrial law “(1900 members) with www.openbc.com.

Within the range of the adviser activity with the emphasis industrial law it has experience of several years.

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