The three provisions that almost always apply
- § 90(1) no. 3 BetrVG: The employer informs the works council in good time about the planning of work procedures and workflows, expressly including the use of artificial intelligence.
- § 80(3) BetrVG: If the works council has to assess the introduction or use of AI, calling in an expert is deemed necessary to that extent.
- § 87(1) no. 6 BetrVG: Co-determination for technical devices intended to monitor the behaviour or performance of employees. Case law interprets this broadly: it is enough that the device is objectively suitable for it.
Why almost any analysis tool can be affected
A scrap analysis per shift, a time balance per machine, a lead time per work centre: as soon as an analysis allows conclusions about individual employees, § 87(1) no. 6 can apply, even if nobody intends it.
That is no reason to do nothing. It is a reason to talk early.
How a pilot starts without conflict
- Inform early. Before the contract, not after the demo.
- Show the data path. Which data is read, what is masked, what goes to the model provider. Onagero supplies a description and a diagram for this.
- Define the level of analysis. By machine, order, work centre or shift, not by person. Where a link to individuals is needed after all, it belongs in an agreement.
- Limit the purpose. Record in writing what the tool is for and what it is not for, for example “no performance evaluation of individual employees”.
- Make usage visible. Who uses which tool is logged; the works council can inspect this if you agree on it.
Framework agreement or individual case?
Many companies conclude a framework works agreement on IT and AI systems and regulate individual tools in annexes. That saves time when further tools follow the first. For the first pilot, an agreement on the specific tool is often enough. You decide this with your works council, with legal advice where appropriate.