Election Procedures in Works Council Elections
Regular works council elections will take place again next year. Despite some counter-trends, working from home remains relevant in many companies. This also affects how works council elections are conducted.
Under standard election procedures, eligible employees can vote in person at the workplace or, under specific conditions, by postal vote.
The law provides that:
- Employees who cannot be present on election day (e.g., business trip, vacation) may apply for postal voting documents from the election committee (§ 24 (1) of the Election Regulations – WO).
- Employees who, due to the nature of their job (e.g., field work), will not be present on election day must be sent postal voting documents without an application (§ 24 (2) no. 1 WO).
- Employees who are expected to be absent for other reasons (e.g., illness, parental leave, sabbatical) must also receive postal voting documents unsolicited (§ 24 (2) no. 2 WO).
But what if eligible employees receive unsolicited postal voting documents even though they are subject to a mandatory on site presence despite a general home office policy?
Postal Voting from Home Despite On-Site Requirement?
This question arose in a case involving a works council election at VW. At the time the election was announced and held, administrative staff were required to work from home due to COVID-19. Exceptions were made for roles where in-person presence was absolutely necessary.
Nonetheless, the election committee sent postal voting documents unsolicited to all administrative employees.
Some employees objected. They argued that sending voting documents without request – even to those required to work on-site – violated the election regulations. As a result, the works council election should be deemed invalid.
Federal Labour Court: No One-Size-Fits-All Approach
The Labour Court initially agreed, declaring the election invalid due to a breach of the election regulations. The Regional Labour Court of Lower Saxony, however, ruled differently.
Following an appeal, the Federal Labour Court (Bundesarbeitsgericht – BAG, Decision of October 23, 2024, Ref.: 7 ABR 34/23) addressed the issue and reached the following conclusion:
The committee’s actions partly violated § 24 (2) no. 1 WO. According to this provision, only those employees who are known to the committee to most likely be absent on election day due to the nature of their work may receive postal voting documents without requesting them.
This includes employees who are (temporarily) obligated or allowed to work from home. In such cases, it is legitimate to send postal voting documents unsolicited.
However, this is only permissible if the election committee knows with certainty that the employees will be working from home on election day. For those required to work on-site despite a general remote work policy, this condition is not met.
The BAG could not conclusively determine whether the committee knew some employees had to work on-site due to operational necessity. This question must now be clarified by the Regional Labour Court.
If the election committee was aware of this at the time of mailing, the election may be contested.
Keep Election Preparations in Sight
Companies are naturally interested in ensuring that works council elections run smoothly. Elections are expensive and committee members are often unavailable for regular work during the process.
Employers should therefore monitor the preparations and, if necessary, alert the election committee to potential mistakes in good time.
What We Can Do for You?
Do you have questions about works council elections? Do not hesitate to contact us!
Summary of the key facts
- The election regulations clearly specify which employees may receive unsolicited postal voting documents during works council elections.
- Sending such documents to employees who are definitely working from home on election day is permissible.
- However, sending them to employees required to work on-site on election day may render the entire election contestable.
