When the works council is allowed to have a say in AI agents

The use of AI agents does not always require the approval of the works council. The crucial factor is whether AI processes personal data for performance or behavior monitoring. An expert explains the legal situation.

This article is part of the special topic Digital Crafts

The increasing use of AI agents is fundamentally changing the daily work routine of many companies. Employers and works councils are faced with the question of whether and when the works when introducing new AI systems must have a say. The crucial factor is how it is handled. personal data.

What do AI agents do?

Artificial intelligence is increasingly supporting companies in processing emails, creating reports, and automating and carrying out entire work processes. AI agents work largely independently within defined frameworks and pursue goals specified by users. Depending on the application area, they support individual work steps or control entire processes, for example in Customer service, in logistics or order management.

The works council's right of co-determination: This is what decides

Not every introduction of AI agents requires the approval of the Works council. critical is which data the systems process data and whether conclusions can be drawn about the performance or behavior of employees. Specialist lawyer for employment law Volker Görzel emphasizes: "Even the possibility of doing that Behavior or a Offering from employees to check, is sufficient according to the case law of the Federal Labour Court for a Right of co-determination to Section 87 paragraph 1 number 6 of the Works Constitution Act (BetrVG) out of."

AI agents therefore solve not always one Co-determination obligation out. Is an automated system used in areas where it no The processing of relevant employee data, for example in fully automated production or logistics processes, usually consists of no Co-determination rights according to Section 87 paragraph 1 number 6 Works Constitution Act.

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EU AI Regulation: No right of co-determination

"In addition to the Works Constitution Act, companies must also comply with the Works Constitution Act." European AI Regulation (AI Act) “Pay attention,” Görzel knows. “This obligates employers to assess risks, ensure transparency, and implement protective measures. For councils However, the AI ​​regulation is justified no independent Right of co-determinationThey should merely monitor compliance with legal requirements within the scope of their duties. The rules of the AI ​​Act only concern information obligations, not the right of co-determination.

Therefore: The question of co-determination rights is clarified exclusively Section 87 paragraph 1 number 6 of the Works Constitution Act. 

Companies should check the following before introducing AI agents.

"Companies should carefully determine the requirements for new AI applications, which data to be processed and whether this is a Performance or Behavioral control "makes it possible for employees," advises the specialist lawyer. "It is equally important to distinguish between information obligations towards the works council and genuine co-determination rights to distinguish between them. Thorough examination protects companies from unnecessary co-determination procedures. Incidentally: Framework company agreements They facilitate the introduction of new systems and prevent later conflicts.

Source: VDAA - Association of German Employment Lawyers. 

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