Decision on Bahncard 100 for a works council member is not urgent

There is no urgency in the legal dispute over a Bahncard 100 for the chairman of a company's works council. This was decided by the Cologne Regional Labor Court in a ruling dated July 28, 2022 (6 TaBVGa 4/22). The decision in the main proceedings as to whether the employer must provide the works council chairman with a Bahncard 100, as this is provided for in a general works agreement, is still pending.

The dispute over a Bahncard 100 for the chairman of a company's works council is not urgent. This was decided by the Cologne Regional Labor Court in a ruling on July 28, 2022 and dismissed the works council's appeal. A decision in the main proceedings is still pending.

Works council chairman wants Bahncard 100, employer does not provide one

In this particular case, the employer, which deals in the retail of sporting goods, and the works council had been in dispute in summary proceedings regarding the decision on a Bahncard 100 for a member of the works council. The company's general works agreement stipulates that the sporting goods retailer guarantees full reimbursement of travel expenses for members of the works council who are released from their duties or provides them with a Bahncard 100. The chairman of the works council opted for the Bahncard, which he did not receive. The attempt to oblige the company to provide the Bahncard by issuing an interim injunction failed before the labor court. The court dismissed the application.

Lack of grounds for injunction: main proceedings must be awaited

The main proceedings will examine whether the works council member is actually entitled to the Bahncard 100. The decision in the summary proceedings is already final. The competent judges of the Cologne Regional Labor Court based their decision on the lack of grounds for an injunction. This only exists if the plaintiff cannot reasonably be expected to wait for the decision in the main proceedings. In the present case, this unreasonableness was not obvious, nor were there any serious disadvantages for the works council chairman. The judges in Cologne listed three reasons for this:

• The Chairman of the Works Council was able to make the trips without incurring any costs of his own using the travel sheet procedure. The low-cost 9-euro ticket for local transport was also available over the summer.
• In addition, travel expenses can be reimbursed by the employer at any time, even before the start of the trip. This eliminates the argument of a lack of liquid funds put forward by the works council chairman. According to the Cologne judges, a Bahncard 100 does not reduce the financial hardship, but actually exacerbates it: due to a much lower travel expense, the chairman would have to pay tax on the granting of the Bahncard 100 as a non-cash benefit to a large extent.
• Furthermore, the works council had no reason to fear that the necessity of its trips to business premises would be reviewed. The works council could not name one case in which a trip to external business premises had been rejected by the employer.

Decision in the main proceedings still pending

It should be noted that the granting of a Bahncard 100 by the company is not a matter of urgency. The possibilities offered by the reimbursement of travel expenses, for example, are too great for the works council chairman to suffer any serious disadvantage. Rather, it should be noted that the granting of a Bahncard 100 represents a not insignificant pecuniary advantage if it is also used for private travel. In the main proceedings, it will be interesting to see whether the general works agreement will apply and the chairman will therefore receive his Bahncard 100. So far, the judges have left open the question of whether granting such a large benefit to the chairman of the works council for reasons of exemption could violate the ban on favoritism. In any case, the granting of the Bahncard does not appear to be as secure as the works council believes.