A works council election can be contested before the Labor Court by at least three employees with voting rights, a union represented at the company or by the employer if material regulations governing the voting rights, the eligibility or the voting process have been violated and the situation has not been rectified. An appeal is not permissible if the election results could not be changed or influenced by the violation.
If an election proposal is submitted to the election committee in time and is still not considered by the election committee, this regularly constitutes grounds for appeal. Up until now, the question of when an election proposal was considered as having been submitted “in time” has been disputed. According to Sec. 6 (1) sentence 2 WO, the proposal lists for the election of the works council must be submitted to the election committee by the eligible voters within two weeks after publication of the election notice. In accordance with Sec 3 (2) No. 8 WO the election committee must state this in its election notice.
The Federal Labor Court states that the election committee has the option of limiting the submission of proposal lists for the works council election on the last day of the voting period to the end of the working day at the company or the end of the working hours of the election committee if this point in time is not before the end of the working hours of the majority of the employees by means of corresponding information in the election notice.
The end of the working day for the majority of the employees is not automatically definitive
The dispute often arose in cases in which the election committee did not announce any time for the last possible submission on the day on which the voting period expired. A number of district labor courts were of the opinion that the end of the working day of the majority of the employees at the company was definitive even at companies with shift work. The election committee was not obliged to enable the submission of proposal lists up until midnight.
Without stating a specific time: the voting period ends at midnight
The Federal Labor Court provides clarity ahead of the regular nationwide works council elections in 2022. If the election committee does not exercise its option of specifying a (legally effective) time by which the proposal lists must have been received on the final day of the voting period, the eligible voters are entitled to trust that the submission of proposal lists will be permitted up until midnight. A proposal list that is placed in the election committee’s mailbox on the final day of the voting period is then regarded as having been submitted in due time. Whether the election committee only becomes aware of this on the next day is not definitive.
For employees, this decision simplifies the situation, particularly if they are working in shifts. On the other hand, there must always read the election notice carefully to determine whether the election committee has stated a specific time. Employers should also read the election notice with care as employees may have questions in this regard.