Of all the participation rights around qualification, Section 92a BetrVG is the one least often cited. That is striking, because it is the only provision that lets the works council put the subject on the table itself, rather than waiting for an employer measure. And it is the only one that can compel an answer in writing.
What the provision says
Subsection 1 reads: the works council may make proposals to the employer for securing and promoting employment. The legislator then lists what such proposals may cover, and the list is unusually concrete. It names, among others, flexible working time arrangements, part-time and partial-retirement models, new forms of work organisation, changes to working procedures, the qualification of employees, alternatives to outsourcing work, and production and investment programmes.
Qualification therefore does not appear as an edge case but as an expressly named instrument for securing employment. Anyone converting a plant and changing the work in it should expect the works council to start exactly here, and to do so before any employer measure exists.
A right to propose, not a right to codetermine
This classification has to be made cleanly, because it gets misread in both directions. Section 92a gives the works council no codetermination right. It may make proposals; it cannot enforce them. There is no conciliation board to decide the matter and no refusal of consent that halts an initiative. The business decision stays with the employer.
Equally, though, it is not a listening ritual. Subsection 2 obliges the employer to discuss the proposals with the works council. To discuss means to deliberate, not to acknowledge receipt. And then comes the part with the most practical bite.
The threshold at 100 employees
If the employer considers the proposals unsuitable, that has to be justified. In establishments with more than 100 employees, the justification must be in writing.
This is the hard edge of the provision, and it is a yes-or-no question rather than a matter of judgement. Below the threshold an oral justification is enough. Above it you owe a document. For companies of the size at which transformation initiatives are planned at all, the threshold is long since passed, so the duty applies in practice every time.
Either side may also invite a representative of the Federal Employment Agency to the discussions.
What this means for project planning
Three consequences follow, and none of them is burdensome if you know about them in advance.
First, the subject can arrive at a time you did not choose. A works council that hears about a planned conversion can bring qualification proposals before your own analysis is finished. If you have nothing in hand at that point, you will be justifying a rejection off the cuff, in writing, and that document stays in the record.
Second, a written rejection is a durable text, not a meeting note. It gets read, it gets kept, and it later gets compared with what actually happened. A justification that dismisses a proposal as “not feasible” without saying why is therefore riskier than one that puts a number on it: which roles are affected, how large the gap is, what the proposal does not solve about it.
Third, it pays to keep the difference from Section 97(2) BetrVG in view. Where the employer's measures change employees' work such that their existing occupational knowledge is no longer sufficient, the works council codetermines the introduction of workplace vocational training measures. That is a genuine codetermination right and therefore an entirely different legal consequence from the right to propose under Section 92a.
In a transformation initiative both apply, at different moments: Section 92a can arrive early, on the works council's own initiative and with no measure yet on the table. Section 97(2) bites once your measure actually changes the work. Confusing the two means underestimating either the early phase or the late one.
The short version
- The works council may propose qualification as a means of securing employment, expressly and on its own initiative.
- You must discuss the proposals, not merely receive them.
- Above 100 employees, a rejection owes a written justification.
- The works council cannot enforce the proposals. Section 92a is a right to propose.
- Keep it separate from Section 97(2) BetrVG, which creates a genuine codetermination right once work changes.
This is not legal advice. It sets out the wording of the provision and the operational duties that follow from it; applying it to a specific case belongs with the people running the procedure in-house.
Sources
- Section 92a Betriebsverfassungsgesetz, securing employment.
- Section 97(2) Betriebsverfassungsgesetz, vocational training facilities and measures.