Legal Protection Against Breaches of Duty on the Part of the German Works Council -- A Fata Morgana?

ISBN-13: 9783642631047 / Angielski / Miękka / 2011 / 97 str.

Detlev W. Belling; Detlev W. Belling

Opis

In the working world, the weal and woe of the largely defenseless individual is vested in the hands of the collective powers. The trust placed in these powers stands in stark contrast to the widespread distrust of the democratic constitutional state. While legal protection vis-a-vis the state has been extended in a very so phisticated and flexible manner, often to an extreme degree, the question of how the employee and the employer can be protected against breaches of duty on the part of the works council (Betriebsrat) under the German industrial govemance laws has yet to be resolved. This is a highly relevant issue of great social and po litical explosiveness. The question is how much latitude the collective powers should have to act according to their own discretion without being compelled to answer not only to the employees, but also to the employers as weIL In light ofthe legal protection that has been developed for the past hundred years and more, and particularly the continued expansion of the individual's legal protection vis-a-vis the state powers since the Basic Law (Grundgesetz) entered into force, the control held by the intennediary powers, and thus also the works council, appears almost anachronistic. In the past ten years this deficiency in the legal protection provided under the industrial govemance laws has increasingly forced its way into the line ofvision ofthe Gennan labor law scholars."

Spis treści

General introduction: The German model; The model in American labor law.- Introduction to the issue.- Case law an the literature: Case law; Literature.- Restraint in Practice.- The relationship between the works council and the employees:The necessity of a system of legal protection against breaches of duty by the works council; The foundation of legal safeguards; The basis of claims; The official duties of the works council toward the employees; The respondent to a claim: the works council or the works council members?; The causality of a breacht of duty; Burden of proof; Fault; The legal consequences of breaches of official duties.- The relationship between the works council and the employer: The differences between the works council's legal relationships to the employer and to the employee; The nature of the legal relationship between the works council and the employer; The legal duties of the works council; Sanctions due to a breach of duty by the works council; Temporary relief for the employer.

Blurb

The German works councils enjoy far-reaching powers and can exert tremendous influence, which creates an indisputable danger of abuse of power. However, the employees and employer are scarcely protected from any breaches of duty it may commit. The legal protection provided in the industrial governance regulations is still insufficiently developed. On the other hand, the powers of the unions in the United States of America have long since been limited by the duty of fair representation. In a state governed by the rule of law, it must be possible to hold anyone exercising power accountable. Proceeding from this principle, the author develops and proposes a comprehensive system of legal protection on a civil law basis. Today, in light of the reform of the Works Constitution Act which was agreed upon in the German federal governments coalition agreement, this work is of great topical immediacy and represents an important contribution to questions of legal policy.