Environmental protection in companies - implementation with or without the works council?

For several years now, employers have been increasingly addressing issues of environmental protection and its implementation in the company. Besides the environmental policy factors, employer branding and the improvement of the company's own brand serve as driving forces for companies. Many ideas have been implemented or are maturing. Even proceeding on the basis that many issues are handled in the interests of the workforce and will not or are not expected to meet with resistance from the works councils, one should not lose sight of what a works council is legally entitled to demand. As plausible as the co-determination of the works council is in case of the closure of a company car park, as implausible this would seem when it comes to questions concerning the separation of waste.

The German Shop Constitution Act [Betriebsverfassungsgesetz, “BetrVG”] itself contains no definition of environmental protection. At the same time, § 80 (1) No. 9 BetrVG attributes the task of promoting environmental protection in the company to the works council. For the employer, the conclusion to be directly drawn from this is that it must inform the works council about these measures. Even further-reaching is the right of participation pursuant to § 89 BetrVG, according to which the works council must ensure that regulations on occupational health and safety are observed and the employer must consult the works council on all issues concerning environmental protection in the company. Finally, § 88 No. 1a BetrVG gives the employer and works council the opportunity to agree on a voluntary shop agreement on environmental protection measures in the company. Accordingly, the participation of the economic committee on issues of environmental protection is also anchored in law (§ 106 (1) No. 5a BetrVG) as well as the handling of environmental policy matters at shop meetings (§ 45 BetrVG). 

In addition to these concrete co-determination rights linked to environmental protection within the company, the works council is also to be involved in the implementation of the measures in terms of work and organizational conduct (§ 87 (1) No. 1 BetrVG) and occupational health and safety (§ 87 (1) No. 7 BetrVG).

What are the concrete possibilities for the employer? Since environmental protection is very broadly based and affects all areas of working life, here are a few examples:

• The company introduces a requirement to separate waste in its offices by company regulation. Violations of the requirement to separate waste will be sanctioned. The labor courts affirm co-determination in accordance with § 87 (1) No. 1 BetrVG in the case of requirements to separate waste.
• The company centrally resets the print functions for printouts, so that only double-sided printouts can be made. Color printouts are no longer possible. In such a case, the works council must be informed in good time pursuant to § 90 (1) No. 3, (2) No. 1 BetrVG, and has a right of consultation.
• The company sets up a beehive outside the warehouse. Notification of the employees is mandatory. In addition, depending on the location of the hive, co-determination rights of the works council may exist pursuant to § 87 (1) No. 7 BetrVG if measures need to be taken to protect employees because of the hive. Furthermore, the works council must be consulted in accordance with § 89 (2) sentence 1 BetrVG.

On the way to becoming a green employer, companies should therefore not ignore works council co-determination if they are to achieve their set goals.
Our experts Annabelle Marceau, Isabel Hexel and Jörn Kuhn are happy to answer your questions.

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