The works council’s role in the introduction of a compliance management systems

Germany and Austria: Involving the works council is mandatory
The works council is an important body in Germany when it comes to introducing a CMS. The Works Constitution Act (BetrVG) regulates in § 87 (1) No. 6 BetrVG stipulates that the works council must approve the introduction and use of technical equipment intended to monitor the behavior or performance of employees.

According to the case law of the Federal Labor Court, it is sufficient that a technical device is suitable for collecting and storing information about the behavior or performance of employees. It does not matter whether the employer actually intends to monitor the employees. The only decisive factor is that a monitoring option theoretically exists.

Compliance management systems are not primarily intended to monitor employees, but rather to transparently present the legal requirements relevant to the company and ensure that employees comply with them. Nevertheless, it is mandatory for the works council to be involved in the introduction of a compliance management system.

The works council is also generally involved in such processes in Austria. The Labor Constitution Act (ArbVG) ensures that the works council is consulted on important business decisions, including the introduction of compliance management software. Introducing software tools in the company may require the consent of the works council, especially when it comes to the automated processing of employee data that goes beyond general information. The consent of the works council can be replaced by the arbitration board if it is refused. It is therefore a necessary and enforceable works agreement, as the introduction of software tools without the consent of the works council is not permitted and the arbitration board can replace the consent for important reasons.

Limited right of co-determination in France
In France, the so-called Comité Social et Economique (CSE) is formed to represent the interests of the company’s employees. The structure of the CSE is similar to that of the German and Austrian works councils, but their decision-making rights are far more limited. The French CSE has no right of co-determination in the company. Furthermore, French law only requires the approval of the CSE in very rare, conclusively regulated cases. It is therefore not necessary to involve the CSE when introducing a compliance management system.

Lack of co-determination rights in Switzerland, China and the US
In Switzerland, works councils do not have any direct say at federal level in the introduction of technical systems. However, employee representatives can use industry- or company-specific agreements such as works agreements to determine what powers and co-determination rights they have. Although there is no explicit co-determination in the introduction of a CMS, such collective agreements can grant extended rights.

In countries such as China and the US, there is no institution that corresponds to the German or Austrian works council.
In China, the decision to introduce a CMS usually lies solely with the company’s management. Some Chinese companies have established a form of employee representation, but this does not have much influence on business decisions.
Although there is currently no legal obligation to form a works council in the US, there is growing potential in this area, as an increasing number of works councils have recently been established in US companies. Nevertheless, there are no statutory co-determination rights in this context.

Conclusion
The introduction of a compliance management system (CMS) poses different challenges internationally. Even though the works council must be involved in the process in some countries such as Germany and Austria, there is often a lack of co-determination rights in other countries.
In conclusion, it remains to be said: The acceptance of compliance by employees is crucial for long-term legal security in companies. A deep understanding of compliance principles is essential to ensure compliance with laws and regulations. Employees must recognize the importance of compliance, not only as a mandatory requirement, but also as a basis for ethical conduct and the protection of the company. Compliance management systems are indispensable for effectively implementing guidelines and minimizing risks. Companies can promote the acceptance of compliance through comprehensive training and frequent communication. Employees who understand the reasons behind the compliance guidelines are more willing to follow them and actively contribute to compliance.

Ultimately, the acceptance of compliance and the use of an effective compliance management system helps to protect companies from legal consequences and helps them to grow responsibly in the long term.