HOW DO I GET TRAINING?
How do I get started? Which training am I allowed to
take under German Labor Law? What do I need to keep in mind?
THERE ARE JUST FIVE STEPS TO TAKE.
STEP 1
Find out if your training is necessary and reasonable
STEP 2
Look for a reasonable date and time for your training
STEP 3
Get a quote from us
STEP 4
Take a resolution in a works council meeting
STEP 5
Inform your employer about the training
STEP 1:
FIND OUT IF YOUR TRAINING IS NECESSARY AND REASONABLE
Trainings need to be necessary
Do you know this situation? You are a newly elected works council member – and now? What can you do? Which rights do you have? What does the works council do, anyway? And how do I take a proper resolution?
There is a solution: German works council members are eligible to get necessary trainings that enable them to understand their legal responsibilities and to learn about their roles. They are able to gather knowledge about their rights under the Works Constitution Act as well as German Labor Law – this has to be paid for by the employer.
Of course this is a burden for the employer, that is why the training is always restricted to the necessary extent.
But what is necessary?
THERE ARE TWO DIFFERENT
CATEGORIES OF TRAININGS
We have basic trainings and special courses. Let's find out when they are necessary:
BASIC TRAININGS
Basic trainings include Labor Law 1, Labor Law 2, and Labor Law 3. Also Works Constitution 1, Works Constitution 2, and Works Constitution 3 are considered basic training.
These basic trainings give the works council members the ability to understand what they are doing. The Federal German Labor Court ruled that basic trainings are almost always necessary.
That means: Usually every works council member can attend these six trainings, at least!
SPECIAL COURSES
Special courses cover topics like working time, data protection, health & safety, and much more. These special courses are necessary when there is a need to handle a specific topic in the establishment (company).
Example: If you or your employer decide to negotiate a works agreement on working time, a training on this topic is necessary. On the other hand: If you want to book a course on the consequences of workplace bullying and there is no case you have evidence for, the special course on how to cope with issues around bullying is not necessary. The employer could refuse to pay for this course.
Trainings have to be reasonable
So, you found a necessary training. Now we have to ask ourselves one more question: Is the training reasonable?
The courts say: A training that is necessary has to be carried out in a reasonable manner!
Let's see what is considered to be reasonable in German Labor Law and the Works Constitution Act according to the judges:
Number of training days:
The labor courts in Germany usually accept trainings for basic topics like Labor Law and Works Constitution which take 5 days. Nevertheless most of the providers offer 3-day courses. Why? Because 3 days are generally enough time for participants. They cannot concentrate any longer, they cannot take in and grasp the unusual input for more than 3 days. This is why most of the providers – like My Law Academy – offer 3-day trainings. But: You can ask for more. If you want a 5-day course, please feel free to ask and we will organize it!
Special courses cannot be as long usually. Judges often think that they should last for 3 days at the most.
Place of the training:
You need to opt for a training that is as close as possible to your establishment in order to save costs on transportation and accommodation. Does this mean you cannot visit a training in Hamburg, for example, when you are based in Berlin? Well, not always. If the training is a special training or is not provided in the next three months in Berlin, you might as well go ahead and travel to Hamburg. But if there are plenty of trainings available for what you need in your hometown you better not start packing your suitcase.
Trainings at My Law Academy are offered online, meaning that you can attend them from your workplace or at home. If your works council would prefer to have an in-house training, then please let us know.
General costs:
You do not have to look for the cheapest course around. If the employer shows you an offer that costs half of the training you want to got to, you do have to reconsider your choice though. It is not required, but good practice that you send your employer at least one more offer from another provider to show that the costs you are asking to be covered are not unusually high.
Number of participants:
If we look at basic trainings, all works council members can participate in the training. The employer is not able to ask three members out of seven to train the other members after attending a basic course in order to save money. With special courses it is different: Usually no more than 3 members can attend, and the judges often find that just 2 members is reasonable. Why? Because not all members of the works council will negotiate a particular works agreement, and therefore not all members will need a specialized training. Most works councils distribute this work to a certain number of members who know the relevant details.
STEP 2:
LOOK FOR A REASONABLE
TIME FOR YOUR TRAINING
You have to take the interests of your employer into account, too.
If there is only one date and time for the training, your employer cannot reject your participation in the course with the argument that the release has a negative impact on business operations.
If a training is offered on different dates and times though, you have to pick a training that has the least negative impact on the business operations.
Sometimes you will have to selectively pick the person you send to a training.
If the training of all members is necessary, like for basic trainings, a restriction on the number of members who attend a training must be made if operational necessities of the establishment require it. In this case the training of all works council members can only take place successively.
As it is seen as sufficient for special trainings that only one to three members take part, you may need to send the members whose release from work has the least adverse effect on the running of the establishment.
In the case of differing suitability, however, the principle of necessity and reasonability dictates that the works council should choose the member it considers most suitable to attend a special training. Therefore, the consideration of operational necessities in the establishment can only lead to a temporary deferral in the determination of the date and time of a training, i.e. in this case, if the training is offered at a later date you may have to compromise with the employer about when to attend.
Please note: If your employer rejects your release for a training at a certain date and time, they cannot stop you taking part in it anyway. You can go ahead as planned – IF you have informed the employer at least four weeks before the training starts and a decision of a conciliation committee does not deny you the training. Please see further information on this case under "Inform Your Employer About the Training."
STEP 3:
GET A QUOTE
FROM US
You found a training that is necessary and reasonable? You thought about a date and time that your employer is able to release you? Good!
Now it's time to get a quote. Call or write to us – and you will receive a quote that contains the topic of your training, the dates and time, the price, and the curriculum.
Why do you need that quote? Because you have to attach it to your resolution that you are about to take in your next works council meeting. You will also have to send the quote to your employer in order to get the training approved.
STEP 4:
TAKE A PROPER RESOLUTION
Most works councils find it difficult to come up with solid resolutions. Why are they necessary to begin with? Because the works council can only take action if there is backing from a legally-sound resolution. That's just the way the Works Constitution Act wants it to be...
For a proper resolution your chairperson will invite all works council members to a meeting. With the invitation the chairperson attaches an agenda. This agenda needs include the resolution to be taken in the meeting. The resolution must name the people attending the training and the type of training you are planning to book. If one or more members cannot attend the meeting, the chairperson invites a substitute instead. In the works council meeting the majority of members have to vote in favor of this resolution. Then you must take proper minutes in the meeting in order to have evidence that the resolution was taken.
Here is a template for the agenda and for the minutes of the resolution. We recommend that you write your agenda and resolution in German as well as English (every time). Otherwise you may need to translate it to German later on if you need to provide the agenda and resolution as evidence in a legal proceeding.
Text for the invitation/agenda:
Agenda: Resolution on sending XXX, XXX and XXX to a training with the topic XXX, offered by XXX in the time from XXX until XXX at a price of XXX EUR net plus XXX (offer of the training attached).
Ladung: Beschlussfassung über die Entsendung von XXX, XXX und XXX zu einer Schulung zum Thema XXX, angeboten von XXX in der Zeit vom XXX bis XXX zu einem Preis in Höhe von XXX EUR netto plus XXX (siehe Angebot der Schulung als Anlage).
Text for the resolution:
Resolution: The works council sends XXX, XXX and XXX to a training with the topic XXX, offered by XXX in the time from XXX until XXX at a price of XXX EUR net plus XXX (offer of the training attached).
Beschluss: Der Betriebsrat entsendet XXX, XXX und XXX zu einer Schulung zum Thema XXX, angeboten von XXX in der Zeit vom XXX bis XXX zu einem Preis in Höhe von XXX EUR netto plus XXX (siehe Angebot der Schulung als Anlage).
STEP 5:
INFORM YOUR EMPLOYER ABOUT THE TRAINING
The last step to take is to inform your employer about the training you are about to attend.
For this information we sent you a quote with the price, the curriculum and the actual date and time of the training you have selected.
Please note: You do not need permission from your employer with regard to the costs. If the training is necessary and reasonable, your employer has to pay for it – even if they do not want to. This is written in section §40 Works Constitution Act (BetrVG).
Although it is always best practice to get the consent from your employer before you start with day one of the training.
Why?
We believe you should not put your employer on the spot in demanding a training, no matter what. That is not advisable for a cooperative employer-works council relationship. In most establishments work trips need to be approved, and the associated costs also need to be approved. Our advice is: Stick to this process. Only if you have difficulties in getting training or when it becomes a pattern that your employer denies you necessary training, should you go ahead without their consent – and book anyway. If your employer then refuses to pay the bill, our lawyers will take care of that if and when that happens.
There is a second reason to ask for permission – although it's legally not necessary: There might be room for interpretation as to whether your training is really necessary or not. If you are under a misconception here, you might have to cover the costs of the training yourself. Of course, My Law Academy would not bill you personally in such a case. But think of a situation in which you have travelled to a different city and took a hotel room there. Your training provider might not bill you personally for the course itself, but they do not want to lose money on other expenses they have covered for your attendance. So avoid putting yourself in a situation where you might have to cover the costs of travel and accommodation - and in the worst case scenario, the training itself.
Please make sure that you inform your employer about the time of the training, as well. Tell them that you need to get released from your working duties for this time. Ask for cover. Your employer has to release you from your work duties so that you can attend a training. That is covered by section §37 subsection 6 Works Constitution Act.
What if your employer replies that the time you picked for the training is not suitable? That they cannot release you due to business reasons? Well, then you take their arguments into account. If you come to the decision though that your employer's reasons are not solid enough, you do not postpone the training.
Please be advised: In this situation you can go ahead and attend the training anyway, IF you have informed your employer at least four weeks before the training starts and if the employer has not set up a conciliation committee in order to negotiate the date and time of the course. The conciliation committee? This is a committee that is set up between you and the employer in a formal way with an external chairperson who has the power to decide the case. Both you and the employer send the same amount of representatives to this committee, usually 2 or 3 people. The chairperson is a specialist who does not work in your establishment (neutral party) and mediates between the employer and the works council.