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Are works council members entitled to be paid during short-time working? The position in Germany

Many works council members are working hard in the context of the current coronavirus crisis, while their organisation has introduced short-time work. In what circumstances should they receive payment for works council duties? This article provides guidance.


During short-time work everything tends to come to a standstill, especially in the current crisis. However, this does not usually apply to works council members. Their works council workload often increases as the workload of ‘normal’ employees decreases. So some work a lot, others little or not at all. Does that mean works council members should be paid separately despite short-time working? Basically no. Because the works council office is an honorary position. This article explains.

What is it about?

In short-time work, the contractually agreed working hours are reduced. A reduction to zero is also possible, so that the obligation to work for the period of short-time work is completely eliminated. The employer's obligation to pay remuneration is eliminated on a pro rata basis analogous to the reduction in working hours, i.e. the employer has no obligation to pay remuneration in the context of ‘zero short-time work’. All that remains is a claim to short-time work compensation from the state.

Often, however, it is precisely in economically difficult times such as these that works council members are busy performing their works council duties. This creates the situation where works council members who work receive the same remuneration as ‘normal’ employees who do not have to work (in the event of ‘zero short-time work’). In many cases works council members therefore claim separate remuneration for their work and their employers are often uncertain whether there is a legitimate claim for payment in these circumstances.

Legal starting point

Normally, works council work is not remunerated, because according to s37 of the Works Council Act, a works council post is an honorary position which is not remunerated and from which no advantages should be derived. On the other hand, members of the work council should not be disadvantaged by their activity (s 78 (2) of the Works Council Act. For this reason s37(2) of the Works Council Act foresees works council members being released from the obligation to work and continuing to be paid when carrying out works council activities. If the works council activity needs to take place outside of work time for operational reasons, the work council members can either be released from work with continued payment, or if this is not possible for operational reasons, they can require payment (s37(3) Works Council Act).

It is however unclear whether s37(3) of the Works Council Act applies, if the works council activity takes place during what would be regular work time, but due to the short-time work is not.


A works council member B works regularly daily from 09:00 to 17:00. His employer, a retail chain, has to close its branches due to coronavirus. All employees are on short-time work. However, B continues to work for the works council.

What do case law and commentary say?

In an older decision, the Federal Labour Court had to rule on the remuneration claim of an elected board member during short-time work (BAG, judgement dated 26 April 1995 – 7 AZR 874/94). In doing so, it determined that the works council's claim for remuneration pursuant to s37( 3) of the Works Council Act must be based on regular working time, i.e. on contractually agreed working time and not on working time reduced by the short-time work. This means in the example above that works council member B does not receive separate remuneration for works council work that takes place between 09:00 and 17:00 beyond normal short-time work compensation.

Commentary suggests that, for work outside of the agreed-upon short-time work times and in accordance with s37(3) of the Works Council Act, works council members should receive time off for working in their free time, or their contractually agreed remuneration. This is justified by the fact that works council members would be working more than other employees who are currently not working under ‘zero short-time work’. For this reason, they should also earn separate compensation, as otherwise they would be disadvantaged. According to this view, works council member B would be remunerated regularly for his work for the works council between 09:00 and 17:00.


It can be assumed that works council activities which take place within regular working hours and which are no longer necessary due to short-time work do not have to be remunerated separately. Otherwise, works council members would receive additional pay for their activities, which is a result the legislator obviously wanted to avoid by introducing the prohibition on preferential treatment and the rules in s37 of the Works Council Act.

However, the situation is of course different if works council members, due to urgent operational requirements, work outside of regular working hours (which no longer apply due to short-time work). In these cases the regulations in s37( 3) of the Works Council Act still apply, that is, a claim to time off or, if this is not possible, to compensation. For works council activities that works council member B performs outside the period from 09:00 to 17:00, there may therefore be an entitlement to compensation.  

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Firm: Kliemt.HR