An earlier piece on this site carries the figure of ten thousand euro, and the argument there is that the figure is not the point. For Section 92 BetrVG that holds: measured against a transformation budget, the fine range in Section 121 BetrVG is small, and what matters is the legal character of the duty.
Here it is the other way round. The point is the figure, and it has no fixed ceiling. What is interesting instead is the trigger, because most conversion projects never test it.
The assumption that is usually wrong
In everyday use, „Betriebsänderung", operational change, is treated as a synonym for job cuts. Anyone dismissing nobody assumes Section 111 BetrVG is not their concern. That assumption reads the first item on the list and then stops.
Section 111 sentence 3 BetrVG lists five categories. Number 1 is „Einschränkung und Stilllegung des ganzen Betriebs oder von wesentlichen Betriebsteilen", restriction and closure of the whole plant or substantial parts of it, and that is where the cuts actually sit. The last two read:
„4. grundlegende Änderungen der Betriebsorganisation, des Betriebszwecks oder der Betriebsanlagen, 5. Einführung grundlegend neuer Arbeitsmethoden und Fertigungsverfahren."
That is: fundamental changes to the organisation of the plant, its purpose or its installations; and the introduction of fundamentally new working methods and production processes. Neither mentions a dismissal, a termination or a headcount. On the wording, a plant conversion that replaces installations and production processes is an operational change even if exactly as many people work there afterwards as before.
The threshold, and where it is measured
Section 111 sentence 1 requires the entrepreneur, in undertakings normally employing more than twenty employees entitled to vote, to inform the works council in good time and comprehensively about planned operational changes which may result in substantial disadvantages for the workforce or substantial parts of it, and to discuss those changes with the works council.
Two subtleties in one sentence. The threshold sits at the level of the undertaking, not the plant, and it counts employees entitled to vote, not heads. For initiatives of the size at which waves of qualification are discussed at all, it was passed long ago. It is still worth naming, because it sits so low that it is never the counter argument in practice.
The counter argument is in the middle of the sentence: changes which may result in substantial disadvantages. That is where the real dispute lies, and we will not pretend it is a bright line. It is a forecast, and forecasts get argued about.
One observation that follows from your own material: whoever has established for a role cluster that the work changes and existing knowledge no longer suffices has that finding in writing. It is the basis of codetermination under Section 97 (2) BetrVG. Using that same finding afterwards as evidence that substantial disadvantages cannot even arise is a difficult position to hold.
The adviser above 300
Section 111 sentence 2 is rarely quoted:
„Der Betriebsrat kann in Unternehmen mit mehr als 300 Arbeitnehmern zu seiner Unterstützung einen Berater hinzuziehen; § 80 Abs. 4 gilt entsprechend; im Übrigen bleibt § 80 Abs. 3 unberührt."
Above 300 employees in the undertaking, the works council needs no necessity test for this adviser. The cross reference to Section 80 (4) carries the confidentiality duty across. And the final clause makes clear that Section 80 (3) remains untouched alongside it, including the expert whose necessity the statute establishes for artificial intelligence. The two can stand side by side.
The measure behind it
Section 113 BetrVG has three subsections. The first two concern the case where a reconciliation of interests has been agreed and the entrepreneur departs from it without compelling reason. Subsection 1 then gives affected employees a claim for compensation and expressly cross refers: Section 10 of the Protection Against Dismissal Act applies accordingly. Subsection 2 obliges the entrepreneur to compensate other economic disadvantages for up to twelve months.
The one that matters for project planning is subsection 3: subsections 1 and 2 apply accordingly where the entrepreneur carries out a planned operational change under Section 111 without having attempted a reconciliation of interests with the works council, and employees are dismissed or suffer other economic disadvantages as a result.
Not concluded, but attempted. The statute does not require agreement. It requires that the attempt was made.
The measure in Section 10 KSchG: subsection 1 sets compensation at up to twelve months' earnings. Subsection 2 raises that to up to fifteen months' earnings for employees who have reached fifty with at least fifteen years of service, and to up to eighteen months' earnings from fifty five with at least twenty years.
The inversion, stated openly
With Section 92 BetrVG, the end of the chain is a fixed amount: up to ten thousand euro, once, as a regulatory offence. That is why the argument there was the legal character and not the sum.
Here the end of the chain carries no fixed amount. The claim arises per affected person and is measured in months' earnings, with compensation for other economic disadvantages over up to twelve months on top. What that comes to in a specific initiative depends on figures we do not know and will not estimate. Only the structure is certain: it is not capped, it is not one off, and it hangs on a procedural step that is either in the schedule or is not.
What follows, and what expressly does not
What follows is a scheduling question. Attempting a reconciliation of interests is a project step with a date, and that date sits before implementation. An initiative whose plan does not contain the step has not forgotten it; it never asked the prior question of whether Section 111 applies at all.
What expressly does not follow: this piece describes no route to avoiding a social plan, and no way of cutting an operational change so that it stays under a threshold. That is not the subject, and it is not what QualiShift is built for. The subject is sequence: first test whether the condition is met, then schedule the procedure, then implement.
What this piece does not do
This piece is not legal advice. It sets out the wording of the provisions. Whether a given conversion is an operational change within the meaning of Section 111 BetrVG, whether substantial disadvantages may arise, and what a reconciliation of interests should cover, is for the people running the procedure in house, and as a rule with legal counsel.
Sources
- Section 111 Works Constitution Act, operational changes.
- Section 113 Works Constitution Act, compensation for disadvantage.
- Section 10 Protection Against Dismissal Act, amount of compensation.
- Sections 80 (3) and (4) and Section 97 (2) Works Constitution Act.