Conciliation committee not competent – No right of co-determination when determining the place where working hours begin and end

Where do working hours begin – and does the works council have a right of co-determination when it comes to determining this location? The Cologne Regional Labour Court (LAG) recently denied this question: The conciliation committee is obviously not competent to rule on the location that is to be decisive for the beginning and the end of working hours. 

Cologne Regional Labour Court, 9 TaBV 25/25

No co-determination on the way to work

A global logistics company employs approximately 3,000 workers in its cargo halls on the premises of an airport. Around 1,000 night shift workers use the airport's free parking facilities outside the company premises. After passing through security checks, the employees then had to walk approximately 1,000 metres to the company premises, for which the logistics company provided a shuttle bus. Due to construction work, the previous parking spaces were relocated for the construction period of approximately two years. This extended the employees' walk to the cargo halls by approx. a further 1,400 metres. 

The works council assumes that this relocation of the parking spaces will significantly increase the time it takes to reach the cargo halls. This time should be considered working time, as it exclusively benefits the employer. The works council therefore requested the appointment of a chairperson for a conciliation committee with the subject matter “Determination of the location whose arrival or departure is decisive for the start and end of working time.”

The employer countered that the conciliation committee was clearly not competent, as the route to its premises in the form of the freight halls was a private commute and therefore not subject to co-determination, applying to both the route before and after the security check.

Cologne Regional Labour Court on the lack of jurisdiction of the conciliation committee in matters of commuting 

In the first instance, the labour court had issued a ruling establishing a conciliation committee with the appropriate composition and the desired subject matter. The Cologne Regional Labour Court, however, ruled in favour of the employer, amended the labour court's ruling, and rejected the works council's applications.

The Cologne Regional Labour Court declared the conciliation committee to be manifestly incompetent (Section 100 (1) sentence 2 of the Labour Courts Act (ArbGG)). It differentiated between the determination of the start and end of working hours and the distribution of working hours, which are subject to co-determination, on the one hand, and the determination of the place where working hours begin and end, on the other. The latter relates exclusively to the assessment of which periods of time or activities belong to the working time to be distributed. With reference to the case law of the Federal Labour Court (BAG) (including 1 ABR 11/18 BAGE 168, 136-146), this legal question is not a possible subject of company regulations, but must be answered by referring to and interpreting relevant collective bargaining or employment contract provisions.

It is inherent in the co-determination provision of Section 87 (1) No. 2 of the Works Constitution Act (BetrVG) that the parties within the company and, if applicable, the conciliation committee must deal with not only regulatory issues but also legal issues as (preliminary) questions. However, the decision on such an isolated legal issue cannot be enforced by one party here, but can at best be brought before the conciliation committee by mutual agreement. Details of this somewhat cumbersome reasoning can be found in the detailed grounds for the decision.

Conclusion

The decision of the Cologne Regional Labour Court draws a clear line between regulatory and legal issues in the context of co-determination in the workspace. In any case, determining the place where working time begins or ends is not, in isolation, a regulatory issue subject to co-determination. At most, it may arise incidentally, e.g., in the context of the design of working time recording. The court thus strengthens the position of employers and confirms that not every operational change that has an impact on the time spent commuting to work automatically triggers a right of co-determination on the part of the works council.