Works council codetermination in IT projects

The decisive sentence sits in Section 87(1) no. 6 of the Works Constitution Act. It gives the works council a right of codetermination on the introduction and use of technical devices designed to monitor the behaviour or performance of employees. Two phrases carry the entire practice. „Introduction and use“ means that not only the purchase but every later change during operation is covered. And „designed to“ is where most misunderstandings begin.

According to settled case law a technical device is already „designed to“ monitor if it is objectively capable of producing statements about the behaviour or performance of individual employees (Federal Labour Court). Suitability alone is enough — whether the employer intends such an evaluation, rejects it, or has switched the function off makes no difference. „But we do not evaluate that at all“ is therefore not an argument against codetermination; at best it is an offer inside the negotiation.

In practice that means: a system that signs people in with a personal account, logs transactions with a timestamp and stores those logs in an evaluable form will as a rule meet the test. Yet those three properties are exactly what is technically necessary — for traceability, for access control, for troubleshooting. Codetermination cannot be designed away without making the system useless. It is more sensible to plan for it.

Working time recording is the most frequent trigger — and the most thoroughly misunderstood. The Federal Labour Court has held that employers are obliged under the Occupational Safety Act to introduce a system for recording working time (Federal Labour Court). Where a statutory duty exists there is nothing to codetermine: the whether is fixed, and the works council can neither block the introduction nor force it on its own initiative.

Codetermination does not end there, it shifts. The council negotiates the how, not the whether. And the how is extensive: which technology records, where recording happens, how forgotten postings are handled, which evaluations are produced and who may see them. These are precisely the questions that a rollout has to settle anyway — involvement merely gives them structure.

Working through the points before the first meeting shortens the negotiation considerably. The list below covers what works agreements on time recording tend to regulate.

Metrics are where well-intentioned digitisation most easily tips over. Lead time per order, share of returns, handling time in the service process: professionally these are statements about a workflow. As soon as the underlying report allows a filter on the person handling the case, it becomes a statement about people. That line runs not through the purpose of the report but through its operability — which is why it belongs in the design of metrics and reporting.

A team-level report is not automatically harmless. In a team of three, the team figure becomes an individual figure once two values are known. Nor does a promise not to use the filter help: what matters is what the tool makes possible. The four building blocks below have proved themselves in agreements because they can be verified technically rather than merely promised.

The works agreement is the outcome, not a formality at the end. It carries a practical advantage for the company that is often overlooked: it ends case-by-case debate. As long as nothing is settled, every new report, every change of rights and every question from the workforce has to be negotiated afresh. Once the agreement exists, the framework is clear for years and only extensions require a new decision.

Agreements work well when they carry technical annexes instead of describing everything in prose. A field list and a rights matrix as annexes are easier to maintain than a clause that has to be reworded with every system change. The information needed for that arises anyway when a project is documented properly — see process documentation.

The section on changes to the system is the most important in practice and the one most often forgotten. Without it, every extension, every additional report and every new module reopens the debate from first principles. With it there is an agreed procedure: notification, short assessment, activation or consultation. That keeps a system maintainable for years without renegotiating the framework each time.

Many mid-size companies have no elected body. In that case there is no codetermination under the Works Constitution Act and a works agreement is not available as an instrument. That does not mean there are no rules: employee data protection applies regardless of workplace representation, as do the duties to inform the people concerned. What a company with a council writes into an agreement belongs, without a council, into a written usage policy.

A works council may be elected in companies with at least five permanent employees eligible to vote (Works Constitution Act); the election needs no particular occasion and can be initiated at any point. For an IT project that means: whoever documents purpose, data types and evaluation limits from the outset already has the paperwork ready when it is needed. That documentation is useful in any case — for data protection, for onboarding new staff and for replacing the system some years later.