The election committee holds the works council election. It has to adhere to the Works Constitution Act and the electoral regulations adopted for this purpose. If the regulations are not complied with, interventions under labor law into the current works council election may be considered.
The Works Constitution Act and the electoral regulations enacted for this purpose set out detailed and, in some cases, complicated procedural rules for works council elections.
If the election committee violates the regulatory requirements, the works council election may have to be stopped. The local labor court is responsible in such a case. In the opinion of the Federal Labor Court, such a legal proceeding can be considered only if the nullity of the election becomes a distinct possibility. An election for the works council is only void, however, if the general principles of a proper election have been violated to such an extent that there is no longer any presumption of an election being held that complies with the law. The consequences of an invalid election is restricted to exceptional circumstances. Thus, an election can be void if the business does not appear to be subject to the Works Constitution Act, but usually not if the operating concept is misunderstood, e.g. when a works council may be elected for a joint business of two companies.
Example:
The works council appoints a second election committee, since it criticized the activity of the first election committee. The employer could apply for a stoppage of an election initiated by the second election committee by way of an injunctive relief. The election carried out by the second electoral board would then be void.
Since a decision concerning the issue at hand is not to be made before the election is concluded, usually only a provisional decision can be made.
The labor court can, however – as a less serious form of intervention – influence the decisions of the election committee in its ongoing electoral process. Since it is not a question of stopping an election, it does not matter whether the alleged infringement would result in the nullity of the election. For example, the inclusion of employees in the electorate list or the recognition of an electoral proposal are conceivable.
Example:
The election committee considers employees A, B, C and D to be “close to the employers”, does not include them in the electorate list, and refuses to take account of election platforms that the employees are supporting during their candidacy. Employees or employers may also be entitled to receive legal aid for interim relief.
Without the help of injunctive relief, the rights of workers entitled to the right to vote would be permanently and unacceptably impaired. An election appeals process, however, takes several years.
For labor court procedures aimed at interventions in the works council election, the employer is entitled to file a claim. Furthermore, all trade unions represented in the business, the works council, and at least three employees entitled to vote are entitled to file a claim. For effective legal protection, it is also necessary that a single employee is affected by the individual measures of the election committee in his or her active or passive voting rights, e.g. in procedures for the inclusion of the employee in the electoral list. Here it is important that attempts are made to find a solution. Due to urgency, a long waiting period is not allowed here.
Practical recommendations:
Once a new works council has been elected, it remains in office until an election appeal is final. Only in the exceptional case of nullity is the works council not in office at any time. For this very reason, the labor courts are cautious in declaring an election void. In particular, if the election committee wishes to take away from disagreeable employees the possibility to vote or to stand for election, an intervention from the labor court in the election should occur. Otherwise, a questionable composition of the new works council may be present, which makes cooperation difficult, as neither side may trust the other. This can quickly exceed the costs of labor court proceedings.