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Health and Safety Representation

The works council (staff council in the public sector) has a key role in representing employees on health and safety issues. It sends representatives to the joint health and safety committee and its agreement is required in some areas, such as the appointment of the occupational physician (works doctor). There are also safety delegates, who are appointed by the employer.

Basic approach at workplace level

 

The employer is responsible for health and safety in the workplace and is obliged to appoint occupational physicians (works doctors) and health and safety specialists, although for smaller companies these will be provided by external bodies. The occupational physician and health and safety specialist, where they are present, are required to cooperate with the works council (staff council in the public sector) in carrying out their tasks.

 

Employee health and safety bodies

 

In the private sector, the works council (Betriebsrat) which can be set up in all workplaces with five or more employees has an important role in health and safety issues. In the public sector, the staff council (Personalrat) has a similar function. In addition, in larger workplaces (more than 20 employees) a health and safety committee (Arbeitsschutzausschuß) should be set up. This is a joint employer/employee body, which includes two members of the works council/staff council. Finally there are also safety delegates (Sicherheitsbeauftragte), who are appointed by the employer (see section on tasks and rights). They are also members of the health and safety committee.

 

Numbers and structure

 

The works council is a purely employee body and its size increases with the number of employees (see table). The arrangements for staff councils in the public sector are similar.[1]

 

Number employed

Number of works council members

5-20

1

21-50

3

51-100

5

101-200

7

201-400

9

401-700

11

701-1,000

13

1,000-1,500

15

From 1,500 to 5,000 employees the number in the works council increases by two for every 500 employees or part thereof; from 5,000 to 7,000 by two for every 1,000, and above 9,000 by two for each additional 3,000 employees.

 

A health and safety committee should be set up in all workplaces with more than 20 employees. It consists of the employer or the employer’s representative, two members of the works council/staff council, the occupational physician/s, the health and safety specialist/s and safety delegates (see below).

 

The number of safety delegates to be appointed depends on the number of employees and the nature of the work and the risks involved. The legislation foresees that safety delegates must be appointed in all workplaces with more than 20 employees, taking account of the number of employees and the threats to health. However, it leaves more detailed guidance in terms of numbers to the accident insurance providers   (Unfallversicherungsträger). As well as making payments and otherwise supporting those whose health has been damaged at work, these bodies have a statutory role in the prevention of accidents, occupational diseases and ill health at work (see section on National context).

 

Following a revision in 2014, the umbrella body covering all the accident insurance providers produced common guidance on the number of safety delegates. This moved away from fixed tables based on employee numbers in specific industries to an approach which stated that the number should be “determined on the basis of the following criteria:

  • accident and health hazards present in the enterprise;
  • physical proximity of the safety delegates to the employees for whom they are responsible;
  • need for safety delegates to be present at the same time as the employees for whom they are responsible;
  • similarity of the work carried out by the safety delegates and the employees; and
  • number of employees.”[2]

 

Examples developed by two different accident insurance providers suggest that in practice this guidance might mean between six and seven safety delegates in a manufacturing company with 350 employees – both manual and non-manual – working over two shifts, but that in an administrative operation with 260 employees two safety delegates would be sufficient. The first example comes from the wood and metal working industry,[3]  the second from an insurance provider covering the public sector.[4] 

Research by the European Agency for Safety and Health at Work (EU-OSHA) in 2014 found that 72% of workplaces in Germany had at least one safety delegate and 25% had a health and safety committee. These are both above the EU-28 averages for similar positions. In the EU-28, 58% of workplaces had health and safety representatives and 21% had health and safety committees. (The figures are for workplaces with five or more employees.)[5]  However, in making the comparison it is important to note that safety delegates are not elected employee representatives.

 

Tasks and rights

 

The works council/staff council has a general responsibility to try to ensure that the health and safety provisions and accident prevention measures are observed and to support the appropriate accident insurance providers in their efforts to eliminate hazards by offering suggestions, advice and information.

 

It has the right to participate in health and safety inspections and to be given details of any instructions issued by the appropriate authorities. It should also receive details of any reports on health and safety issues as well as notification of any accidents. The works doctor and health and safety specialists must inform the works council/staff council of any significant developments in the area of health and safety and of any proposals they intend to make to the employer. They must also advise the works council/staff council on health and safety issues if they are asked for this.

 

In addition, the works council/staff council must approve the appointment or dismissal of the works doctor and the health and safety specialist. The arrangements for the prevention of accidents and occupational diseases and for health protection are also subject to works council/staff council agreement. If no agreement is reached, the issue goes to the external arbitration committee (Einigungsstelle), made up of representatives of both employer and works council with a neutral chair, for a decision.

 

The works council/staff council must also be consulted on the appointment of safety delegates. However, it is not necessary to obtain its agreement to their appointment.

 

The health and safety committee should be informed and consulted on health and safety and accident prevention issues and it provides a forum in which measures to improve workplace health and safety can be developed.

 

The role of the safety delegates is more limited. They are to support the employer in health and safety issues, to influence employees and to note failings. The intention is that individuals appointed to this position be aware of both how the work is organised and what needs to be done to keep it safe. They should get the information they need to be effective in the role, and they should take part in the inspections and investigations of accidents and occupational diseases carried out in their area of responsibility by inspectors from the occupational insurance association/ accident fund. They must also be informed of the results of such inspections and investigations.

 

However, safety delegates  are not paid for holding the position, they cannot issue instructions and they cannot be held responsible for health and safety failings.

 

Frequency of meetings

 

The works council/staff council should meet the employer at least once a month, although many issues other than health and safety will be discussed. The heath and safety committee should meet at least every three months.

 

Election and term of office

 

Works council/staff council members are elected by the whole workforce and the term of office is four years.

 

The works council/staff council representatives on the health and safety committee are chosen by other members of the works council/staff council.

 

Safety delegates are appointed by the employer with the involvement of the works council/staff council, but the employer takes the final decision.

 

Resources, time off and training

 

Works council/staff council members have paid time off to carry out their duties, including those connected with health and safety, and, in workplaces with more than 200 employees, at least one works council member has the right to be completely freed from other duties. (In the public sector, there must be at least 300 staff before a staff council member has the right to be freed from other duties.) They also have the right to take part in training connected with their activities.

 

There are no specific time-off rights associated with membership of the health and safety committee, although attendance at its meetings is paid.

 

Safety delegates also have no specific time-off rights. However, they are likely to be given training which will often be provided by the employer’s occupational insurance association/accident fund.

 

In certain circumstances, provided the employer agrees, the works council can bring in external experts, paid for by the employer, and this right may be used in connection with health and safety issues. Staff councils in the public sector do not have this right explicitly.

 

Protection against dismissal

 

Works council/staff council members can only be dismissed for extraordinary reasons – such as gross misconduct – and only if the works council/staff council or the court agrees (labour court for works council members and administrative court for staff council members).

 

Safety delegates do not have special protection against dismissal. However, they should not be disadvantaged because of their activities in the role.

 

Other elements of workplace health and safety

 

Employers are required to have access to the services of occupational physicians (works doctors) and health and safety specialists, normally engineers or technicians. In some cases they will be employees, in others provided externally. The extent to which this is necessary depends on the type of work being undertaken, the number employed, the way work is organised and the knowledge and training of the employer.  These occupational physicians and health and safety specialists have a degree of independence from the employer. In their area of expertise they cannot be given instructions by the employer.

National context

 

The ministry responsible for health and safety at work is the Federal Ministry of Labour and Social Affairs (Bundesministerium für Arbeit und Soziales – BMAS) at national level. However, the responsibility for monitoring compliance with health and safety laws and regulations lies with the 16 regional states (Länder) through their occupational safety authorities (Arbeitsschutzbehörden), although the structures and names of these bodies varies. Coordination among the regional states on these issues is provided through the State Committee for Occupational Safety, Health and Technology (Länderausschuss für Arbeitsschutz und Sicherheitstechnik – LASI).

 

However, these government bodies make up only one of the pillars of the German health and safety structure. The other pillar is provided by bodies providing insurance against accidents at work and occupational ill-health. Funded through obligatory contributions from employers, the occupational insurance associations (Berufsgenossenschaften) in the private sector and the accident funds (Unfallkassen) in the public sector have a statutory role in the prevention of accidents, occupational diseases and ill health at work. They issue regulations which employers are obliged to follow and carry out inspections to ensure compliance, as well as providing advice. Their umbrella body, the German Statutory Accident Insurance (Deutsche Gesetzliche Unfallversicherung – DGUV), which in 2007 brought together the private and public sector accident insurance providers in a single structure, coordinates work in the area of prevention.

 

The two pillars are brought together in the Joint German Occupational Safety and Health Strategy (Gemeinsame Deutsche Arbeitsschutzstrategie – GDA), which is developed by representatives of central government, the regional states and accident insurance providers. The National Occupational Safety and Health Conference (Nationale Arbeitsschutzkonferenz – NAK) is the decision-making body for the planning, coordination and evaluation of the measures set out in the strategy

 

Unions (and employers) play a major role in both pillars and in the national conference.

 

Within the government pillar, they are involved in advisory bodies of the Federal Ministry of Labour and Social Affairs, such as the committee on hazardous substances, the committee on biological agents and the committee on workplaces, which discuss changes to health and safety regulations. They are also involved at regional state level.

 

The play an even larger role within the accident insurance providers         (Unfallversicherungsträger), which are self-governing, with an equal number of representatives of employers and employees on their governing bodies. This includes the governing body of the umbrella organization, the DGUV. Unions and employers together decide on the budget, the level of contributions, prevention measures and all other issues.

 

Finally both the unions and the employers have three seats on National Occupational Safety and Health Conference.[6]

 

German health and safety legislation now gives greater weight to psychosocial risks. The Occupational Safety and Health Act (ArbSchG) was changed in October 2013 and specifically refers to the need to organise work in a way which, as far as possible, avoids mental and physical risks to health (§ 4), and adds psychosocial risks at work (“psychische Belastungen bei der Arbeit”) as one of the issues that have to be taken into account when conducting a risk assessment (§ 5).

Key legislation

 

Act relating to Works Doctors, Safety Engineers and other Occupational Safety Experts (Occupational Safety Act) 1973

Works Constitution Act 1972

Social Code (VII)

Occupational Safety and Health Act 1996

 

Gesetz über Betriebsärzte, Sicherheitsingenieure und andere Fachkräfte für  Arbeitssicherheit (Arbeitssicherheitsgesetz – ASiG) 1973

Betriebsverfassungsgesetz (BVG)1972

Sozialgesetzbuch (SGB) VII

Arbeitsschutzgesetz (ArbSchG) 1996

[1] Each German regional state (Land) and the central government (Bund) has its own legislation governing staff councils. These pages are based on the legislation for central government (Bundespersonalvertretungsgesetz).

[2] DGUV Vorschrift 1, Deutsche Gesetzliche Unfallversicherung e.V

[3] Leitfaden zur Ermittlung der Anzahl der Sicherheitsbeauftragten in den Branchen Holz und Metall, Berufsgenossenschaft Holz und Metall, https://www.bghm.de/fileadmin/user_upload/Arbeitsschuetzer/Praxishilfen/Formulare/Pflichtenuebertragung/Leitfaden_Ermittlung_Anzahl_SiBa.pdf

[4] Leitfaden zur Ermittlung der Anzahl der Sicherheitsbeauftragten, Unfallversicherung Bund und Bahn, https://www.uv-bund-bahn.de/fileadmin/user_upload/9326.pdf 

[5] Second European Survey of Enterprises on New and Emerging Risks, European Agency for Safety and Health at Work, 2016

[6] For more information on the national context see  OSH system at national level – Germany by Simon Kaluza, OSH Wiki  https://oshwiki.eu/wiki/OSH_system_at_national_level_-_Germany

L. Fulton (2018) Health and safety representation in Europe. Labour Research Department and ETUI (online publication). Produced with the assistance of the Workers' Interest Group of the Advisory Committee for Safety and Health at Work (of the EU Commission). Online publication available at http://www.worker-participation.eu/National-Industrial-Relations.