German Federal Labor Court does not grant injunctive relief to works councils who want to hinder employers to hire, transfer or replace their employees.

Hiring, transfer or replacement of employees in the company's organization can often lead to disputes with the works council. The Works Constitution Act (Betriebsverfassungsgesetz - BetrVG) stipulates a strong co-determination right for the works council in § 99 BetrVG. In particular, the employer has to ask for the works council's consent before hiring a new employee. However, this right is not unlimited. If the works council refuses the hiring or transfer, the law grants the company the right to hire or transfer the candidate in a preliminary status without works council consent (§ 100 BetrVG). After that the works council's consent can be replaced by a court decision.  In the past some works councils and their attorneys did not want to accept this. They then often reckon that there would be a general right for the works council to ask the labor court for an injunctive relief. This relief should stop the employer from hiring. However, in a recent ruling the Federal Labor Court clarified that there is no such right for the works council (06/23/2009 - 1 ABR 23/08).

In the case before the Federal Labor Court a works council of an airline had filed a motion to grant injunctive relief. The company had different groups of employees who were working during every shift of the day. The employees replaced each other in their shifts. The employer asked the works council according to § 99 BetrVG in each case to grant permission for theses transfers as long as the replacement was running for more than one month. In the other cases (transfer for less than one month) the employer did not ask the work council for permission. The works council claimed to have also a  codetermination right in the cases of short term transfers. The council then filed a motion to the court to prevent the company from more short term transfers without works council consent - but without success.

The Federal Labor Court held that § 100 BetrVG entitles the company to conduct a human resources measure in the senses of § 99 BetrVG (e.g. hiring, transfer, replacement) without prior consent of the works council. If the company fulfils the procedural prerequisites stipulated in § 100 BetrVG it is legal to have a preliminary hiring, transfer or replacement of employees. In its § 100 BetrVG the Works Constitution Act accepts that an employer acts preliminarily without prior consent of the works council.

With this decision the Federal Labor Court closed long lasting discussion with an employer-friendly ruling. Many companies have to hire etc. at short notice on a clear legal basis. With this ruling the works council can no longer rely on the option of injunctive relief from the labor courts. However, it is still required that employers comply with the procedure stipulated in § 100 BetrVG.