Codetermination on AI: the rights of works councils, staff councils and church employee representatives

This guide sets out the rights of employee representatives in Germany, Austria and Switzerland. How to approach the introduction in practice and which documents the representatives receive is covered in the guide “Model service agreement for AI”.

Which representative body has a say, and under which law?

That depends on the employer. Everywhere, the central provision concerns technical equipment that can monitor the behaviour or performance of staff:

Employer	Representative body	Provision on technical equipment	Result of agreement
Companies, private hospitals	Works council (Betriebsrat)	§ 87(1) no. 6 BetrVG (Works Constitution Act)	Works agreement (Betriebsvereinbarung)
Federal authorities	Staff council (Personalrat)	§ 80(1) no. 21 BPersVG (Federal Staff Representation Act)	Service agreement (Dienstvereinbarung, § 63 BPersVG)
Federal states, municipalities, municipal hospitals	Staff council (Personalrat)	Staff representation act of the federal state	Service agreement
Catholic employers, such as Caritas	Employee representation (Mitarbeitervertretung, MAV)	§ 36(1) MAVO (no. 9 in the framework version; check the numbering for each diocese)	Service agreement
Protestant employers, such as Diakonie	Employee representation (Mitarbeitendenvertretung)	§ 40(k) MVG-EKD	Service agreement (§ 36 MVG-EKD)

If the parties do not agree, in a private-sector establishment the conciliation committee (Einigungsstelle) decides; its ruling replaces the agreement (§ 87(2) BetrVG). Staff representation law and church law have their own conciliation and arbitration procedures.

Is it enough that an AI could monitor?

Yes. According to the Federal Labour Court, technical equipment is “intended” for monitoring if it is objectively suitable for collecting and recording information on behaviour or performance. Whether the employer intends to do so is irrelevant (BAG, 13.12.2016, 1 ABR 7/15). The MVG-EKD expressly refers to equipment that is “suitable” for monitoring.

An AI platform as a rule meets this: it has sign-ins, a log and usage data that can be attributed to a person. Codetermination therefore does not depend on whether anyone wants to analyse the data, but on whether it would be technically possible. That is exactly why the agreement should state what is excluded. More on this in the guide AI and employee performance monitoring.

Which other rights apply to AI?

Since the Works Council Modernisation Act of 2021, the BetrVG expressly mentions artificial intelligence in several places:

• Information and consultation (§ 90 BetrVG): The works council must be informed at the planning stage, expressly also when AI is used, and early enough for its proposals to still influence the planning.
• Experts (§ 80(3) BetrVG): If the works council has to assess the introduction or use of AI, calling in an expert is deemed necessary.
• Selection guidelines (§ 95(2a) BetrVG): The requirement of consent also applies when AI is used for guidelines on recruitment, transfer or dismissal.
• Training (§ 97(2) BetrVG): If tasks change so that existing skills are no longer sufficient, the works council has a say in introducing training.
• Operational change (§ 111 sentence 3 no. 5 BetrVG): Introducing fundamentally new working methods can be an operational change, in companies with more than 20 employees entitled to vote.

Under federal staff representation law, codetermination also covers general questions of further training (§ 80(1) no. 10 BPersVG) and fundamentally new working methods (no. 20). The MVG-EKD names new working methods and measures to raise work performance (§ 40(h) and (j)).

What applies if staff use AI through private accounts?

In 2024, the Hamburg Labour Court ruled: if an employer only allows staff to use an AI service in the browser with their own private accounts and does not provide a system itself, there is no codetermination under § 87(1) no. 6 BetrVG. The data is then collected by the provider, not by the employer (ArbG Hamburg, 16.01.2024, 24 BVGa 1/24). According to the court, guidelines on use concerned work behaviour, not order in the establishment.

The decision is an interim ruling at first instance. If your organisation provides its own AI platform, the situation is different: the employer then operates the technical equipment, and codetermination applies. Private accounts also raise their own questions about data protection and confidentiality, see the guide “Shadow IT in public authorities”.

What does the EU AI Act change?

The EU AI Act does not replace codetermination rights. It expressly allows member states to keep rules that are more favourable to employees (Art. 2(11)). Three points matter for the employee representatives:

• Prohibition: Emotion recognition in the workplace has been prohibited since 2 February 2025, except for medical or safety reasons (Art. 5).
• High risk in the workplace: Systems that decide on recruitment, promotion, dismissal or tasks, or that monitor performance and behaviour, are high-risk AI (Annex III no. 4). Before using them in the workplace, the employer informs the employee representatives and the staff (Art. 26(7)). Following the amendment by Regulation (EU) 2026/1744, these obligations apply from 2 December 2027.
• AI literacy: Employers take measures to promote the AI literacy of their staff (Art. 4), see Organising AI training.

What applies in Austria and Switzerland?

Austria: Control measures and technical systems for monitoring staff that affect human dignity require the works council’s consent in a works agreement (§ 96(1) no. 3 ArbVG). Systems that process personal data of staff beyond general information and qualifications also require consent, which the arbitration board can replace (§ 96a ArbVG). In the public sector, the staff representation law of the federal government or the federal state applies.

Switzerland: There is no codetermination right as in Germany. Under Art. 26 ArGV 3, systems intended to monitor behaviour in the workplace may not be used; if they are needed for other reasons, they must be designed proportionately. The employee representatives have rights of participation in matters of health protection (Art. 48 ArG): hearing and consultation before the decision, and reasons if the employer does not follow their objections.

How does this work with basebox?

For the negotiations, there is a model agreement that you can use as a works agreement or service agreement, as a non-binding draft without legal advice. The documents on logging and permissions are available under /sicherheit. basebox’s principle: logging serves security, not performance monitoring. In the dashboard, your administrator sees usage, also per person, but no questions or content. Because this means the system is suitable for monitoring, the agreement should state who may see the dashboard and that figures per person are not used to monitor performance or behaviour. Roles come from your existing account directory; no new profiles are created. We answer the technical questions of the employee representatives and their experts.

Not legal advice: This guide gives a general overview as of 11 October 2026. The staff representation acts of the federal states, versions of the MAVO and the law of the regional Protestant churches differ in detail. Have the legal situation checked for your organisation.