The works council and Microsoft 365 in Germany

Created onJanuar 7, 2022

Last updated onJanuar 7, 2022

throughRaphael

The works council must also be involved in the introduction and use of Microsoft 365. However, there are countless questions in this context, from the scope of co-determination to the works agreement and its effects

The works council and Microsoft 365

According to prevailing opinion, the works council has a say in the introduction of Microsoft 365 (EMS, Windows 10, Office365) pursuant to Section 87 of the Works Council Constitution Act (BetrVG). This is now generally undisputed.

Section 87 states that, in the absence of a statutory or collectively agreed regulation, the works council can have a say in the introduction and use of technical equipment intended to monitor the behavior or performance of employees (Section 87 (6) BetrVG).

The principle of favorability further ensures that an individual contractual waiver of claims arising from a works agreement is only effective with the consent of the works council (Section 77 (4) BetrVG).

In the meantime, it has also been confirmed that, in addition to its rights and duties, the works council can also see the monitoring of data protection as its task. In the Federal Data Protection Act (BDSG, Section 4 Permissibility of Data Collection, Processing and Use), it was decreed that:The collection, processing and use of personal data are only permissible to the extent permitted by this Act or another legal provision. Since a works agreement has the character of “another legal provision” and collective agreements (= works agreements) are explicitly mentioned in BDSG § 26 (1) and (4), the following applies: If the employer wishes to process employee data that is not directly related to the establishment, implementation or termination of the employment relationship, it requires the consent of the works or staff council.

Standard contribution of the DGB
This contribution is the standard contribution when it comes to the co-determination of works councils. Employees and also employer representatives often start with this contribution.

https://www.dgb.de/themen/++co++0342f31e-6c85-11e7-b8f9-525400e5a74a

Legal bases in Germany

§ 87 BetrVG Co-determination rights – performance and behavior control and § 80 BetrVG General tasks – compliance with BDSG
§ 26 BDSG Data processing for purposes of the employment relationship
Art. 88 DSGVO Data processing in the employee context

Works Constitution Act on the Internet
https://www.gesetze-im-internet.de/betrvg/

Discussion points
Security
Data protection
Compliance
Transparency
The company framework agreement (BV)
It is possible to conclude a works agreement between the works council and the employer (AG). This right is derived from It stipulates (identical in wording to the corresponding provision in Section 4 TVG) the direct and mandatory effect of the works agreement (= “normative effect”) in favor of the employees of a company (Section 77 (4) Sentence 2 BetrVG). Only to the extent that regulations more favorable to the employee have been agreed in individual contracts do these take precedence over the works agreement (favorability principle).

Discussion: (examples in structure and competence)

Thematic or one general and individual products
General with all products or products in the appendix
Regular updates of the BV or only every 6 months
Responsibility: Group works council/general works council or company works councils
Responsibility for the BV and the decision
In corporate groups and associations of companies, there are works councils both in the individual companies and in the superstructure of the group. The group works council is usually responsible for the introduction of a uniform IT system such as Microsoft 365 that applies to all companies.

Since many works councils in the subsidiaries do not want this and do not want to bow to the Group Works Council, arbitration proceedings and court cases are often conducted. Several of these proceedings are currently underway.

Typical structure of a group works council

The typical structure of a BV for Office 365 is as follows:

IT BV as framework agreement
Azure AD as an annex/extension to the BV
Office 365 Pro Plus as attachments/extension to the BV
Exchange Online as attachments/extension to the BV
Unified Labeling / Azure Information Protection as attachments/extension to the BV
My Analytics / Desktop Analytics as attachments/extension to BV
ML and AI in Microsoft 365 as attachments/extension to BV
Endpoint Protection as attachments/extension to the BV.
Partial: OneDrive as attachments/extension to the BV.

An IT BV forms the basis for the use of IT in a company and generally regulates this use. This can, for example, stipulate that private use of Microsoft 365 and the Internet with company devices is not permitted.