Every article on this website ends at the cohort: target role, learning path, group, date. A transformation initiative does not end there. It ends on the day someone who has completed the measure takes the new place on the line. In the German Works Constitution Act that day is an individual personnel measure, and it comes with a procedure and three deadlines that appear in hardly any qualification plan.
What a transfer is
Section 95 subsection 3 sentence 1 BetrVG defines the term for the whole Act: a transfer ("Versetzung") is the assignment of a different area of work which is expected to exceed one month in duration, or which is connected with a substantial change in the circumstances under which the work is to be performed.
Two alternatives, separated by an "or". The first is a question of time: a different area of work for what is expected to be more than a month. The second is a question of substance: a substantial change in the circumstances of the work, regardless of duration. Sentence 2 excludes employees who, by the nature of their employment, are not usually employed at one fixed workplace; for them, the allocation of the particular workplace does not count as a transfer.
Anyone who moves from a role cluster into a target role that the company itself has defined as a changed activity profile will, as a rule, meet the first alternative and often the second as well. The move is meant to last, and the circumstances of the work, say the machine, the inspection station or the high-voltage workstation, are different. Whether a specific move is a "different area of work" remains a question of the individual case. But an employer who has already established, for codetermination under section 97 subsection 2 BetrVG, that the work is changing and the existing knowledge no longer suffices will find it hard to argue that the same move is not the assignment of a different area of work.
What section 99 then requires
Section 99 subsection 1 sentence 1 BetrVG reads, in substance: in companies with, as a rule, more than twenty employees entitled to vote, the employer must inform the works council before every hiring, grading, regrading and transfer, submit the necessary application documents, and provide information about the persons involved; the employer must, submitting the necessary documents, give information about the effects of the planned measure and obtain the works council's consent to it. Sentence 2 adds for transfers: the employer must in particular state the intended workplace and the intended grading.
Four things stand in that sentence and deserve to be read separately.
The threshold is measured at company level and counts employees entitled to vote, not heads. More than twenty is long exceeded in any initiative where qualification waves are being discussed.
The duty applies "before every" transfer. It is a procedure per person, not per cohort. Forty employees who move into the same target role after the same measure are forty notifications, each with information about the person and about the intended workplace.
It is a consent right. Unlike section 92 BetrVG, where the works council is informed, and unlike section 92a, where proposals are discussed, here the employer obtains consent. Without it the measure may not be carried out, with the one exception in section 100.
And the notification is backed by a fine. Section 121 subsection 1 BetrVG lists section 99 subsection 1 among the duties of disclosure and information whose breach is an administrative offence, with a range of up to ten thousand euros. It is the same list that contains section 92 subsection 1 sentence 1.
The six grounds on which the works council may refuse
Section 99 subsection 2 lists exhaustively when the works council may refuse consent. For a move after a qualification measure, three of the six matter.
Number 1: if the measure would breach a statute, an ordinance, an accident prevention regulation, a collective agreement, a works agreement, a court decision or an official order. That accident prevention regulations are expressly named has a practical consequence for target roles with competence requirements: the qualification must exist before the transfer, not be caught up afterwards. Whoever transfers first and qualifies later hands the works council its ground for refusal along with the notification.
Number 2: if the measure would breach a guideline under section 95. Selection guidelines for transfers require the works council's consent under section 95 subsection 1, and in establishments with more than 500 employees the works council may demand under subsection 2 that such guidelines be drawn up. Subsection 2a makes clear that this also applies where artificial intelligence is used in drawing them up. So whoever decides by criteria who moves from a cluster into the target role has a guideline, whether it is called one or not.
Number 5: if an internal advertisement required under section 93 was omitted. Section 93 gives the works council the right to demand that positions to be filled are advertised within the establishment before they are filled, generally or for certain kinds of work. A new target role is a position to be filled. Whether it must be advertised internally depends on whether the works council has demanded it; whether it has demanded it is something to know before cohort planning, not to learn at the first transfer.
Numbers 3 and 4 concern disadvantages for other employees or for the transferred person that are not justified on operational or personal grounds. Number 6 concerns industrial peace.
The three deadlines
The procedure has deadlines that are written in the Act and can therefore be entered in a schedule.
One week. Under section 99 subsection 3, the works council must communicate a refusal in writing, stating its reasons, within one week of being informed. If it does not, consent is deemed given. The deadline is tied to the notification, and what a notification must contain is set out in subsection 1. Whoever wants the week to run therefore submits everything named there, and dates it.
Three days. Section 100 allows the employer to implement a personnel measure provisionally where this is urgently required for objective reasons, before the works council has responded or after it has refused consent. The employer must inform the works council without delay. If the works council disputes the urgency, the measure may only be maintained if the employer applies to the labour court within three days for the consent to be substituted and the urgency to be established. A planned plant conversion with a three-year horizon will rarely be an objective reason that makes a transfer urgent; the provision is built for the exception, not for the schedule.
Two weeks. If the court refuses substitution with final effect, or finds with final effect that the measure was obviously not urgently required, the provisional measure ends under section 100 subsection 3 two weeks after the decision becomes final. The person is then back at the old workstation.
Where the person level begins, and why there is no choice here
Elsewhere this website describes why the analysis works at role level and why no name appears in the chain up to the programme proposal. Section 99 is the point at which the Act itself demands the person level: information about the person involved, the intended workplace, the intended grading. That is not a contradiction but a sequence. The role level supplies the reasoning why a target role comes into being and what it requires. The person level supplies who takes it up after the measure, and at that point the person stands before the works council by name, because the Act says so.
From this follows an order of three provisions that do not sit side by side in the Act and apply one after the other in an initiative: section 98 subsection 3, the works council's right to propose who takes part in the training measure, that is who learns. Section 81 subsection 4, the discussion with the individual as soon as it is established that their work will change. And section 99, consent to the transfer, that is who takes the new place. An initiative that serves the first provision and overlooks the third has formed the cohort cleanly and left the implementation without a procedure.
What follows for the schedule
Between the end of the measure and the first day in the target role lies at least the week from section 99 subsection 3, per person, counted from complete notification. Whoever assembles the documents for the notification only after the cohort has finished pushes the start back by that week plus the time it takes to assemble them. Whoever draws them from the same data set the cohort was formed from has them on the day the cohort finishes.
And the transfer should come after the qualification, not before it. That sounds obvious and is regularly reversed in initiatives where the line starts up before the cohort finishes. Section 99 subsection 2 number 1 is the reason this is not only a safety question but also a consent question.
What is not here
This article is not legal advice. It reproduces the wording of sections 93, 95, 99, 100 and 121 BetrVG and places them in the sequence of a qualification initiative. Whether a specific move is a transfer, whether a ground for refusal exists and what a notification must look like in a given case is for those who run the procedure in-house. On grading, which section 99 also covers, this article says nothing; it depends on the pay system that applies.
Sources
- Section 95 subsection 3 Betriebsverfassungsgesetz, definition of transfer; section 95 subsections 1, 2 and 2a, selection guidelines.
- Section 99 Betriebsverfassungsgesetz, codetermination in individual personnel measures.
- Section 100 Betriebsverfassungsgesetz, provisional personnel measures.
- Section 93 Betriebsverfassungsgesetz, internal advertisement of positions.
- Section 121 Betriebsverfassungsgesetz, administrative fines.
- Section 81 subsection 4, section 97 subsection 2 and section 98 subsection 3 Betriebsverfassungsgesetz, as covered in earlier articles.