Challenging the works council election.

 Objections to the list of voters (Federal Labour Court, ruling of 02.08.2017 – 7 ABR 42/15)

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Challenging the works council election, Insight von Tobias Grambow, Rechtsanwalt der Kanzlei Buse Heberer Fromm

The procedure for the works council elections is complex. It should ensure a fair and equal-opportunity election. The electoral committee is under obligation to draw up a list of voters. A copy of the list must be laid out in the company from the day on which the election is initiated until the end of voting, allowing everyone to consult it. In addition, the list of voters can be made public through electronic media. The participation of an employee in the works council election depends on whether he or she is listed on the list of voters.

According to the election regulations (Wahlordnung), objections to the accuracy of the list of voters can only be raised in the event that less than two weeks have passed since the publication of the election notice. Objections must be submitted to the election committee in written form and the election committee must decide them immediately. The election committee must check the list of voters for completeness even after expiry of the objection period and independently of objections.

In the case decided by the Federal Labour Court, the election committee had corrected the published lists of voters several times. However, the list of voters published on the intranet was not corrected. This resulted in different lists of voters with different information regarding the employees entitled to vote. For this reason, four employees contested the works council election. These employees had not previously submitted an objection to the accuracy of the list of voters to the election committee. The newly elected works council therefore took the view that a challenge was no longer possible. Furthermore, according to the new works council, it is not important to have a list of voters on the intranet.

The Federal Labour Court’s ruling

A works council election may be challenged before the Labour Court in the event that essential provisions concerning the right to vote, the eligibility for election or the election procedure have been violated and no correction has been made. A challenge is not possible if the election result could not be changed or influenced by the violation. A minimum of three voters, a union represented in the company or the employer are entitled to challenge the election. The challenge of the election is admissible within two weeks from the date of the announcement of the election result.

Even if a challenge of the works council election is justified by the inaccuracy of the list of voters, a prior objection to the list of voters is not a formal prerequisite for the – later – challenge. Such a serious legal consequence would have required legislation.

Due to the importance of the list of voters for the employees’ right to vote, the election committee is under obligation to draw up and publish the list of voters accurately in order to ensure that the important and essential provisions on the electoral procedure are observed. The election committee is however not obliged to publish the list of voters on the intranet. Nevertheless, if it is published on the intranet, subsequent corrections to the list of voters must also be made on the intranet. In this specific case, it was assumed that the violation could have influenced the election results.

Recommendation for common practice

The works council elections in this case took place in March 2014. It was not until August 2017 that a final decision on the challenge was made. The term of office of the improperly elected works council only ended after more than three years. A works council remains in office until an election challenge is legally valid. As such, the works council can, for instance, conclude works council agreements, attend training courses and conduct legal proceedings. Even if an objection to the list of voters is not a prerequisite for a later challenge in the current electoral procedure, this case underlines the importance of correcting voter errors prior to the actual vote. Objections to an inaccurate list of voters therefore makes sense. In the event that the election committee does not correct the list of voters, the Labour Court can issue an interim injunction to the election committee to make a correction. Such a motion would be unfounded without prior objection to the election committee. Further information can be found here.