Right to vote
All company employees the who have reached the age of 16 have the right to vote in the works council elections. This also applies to temporary workers if they have been employed at the company for longer than three months. All eligible voters who are aged 18 or older, and have been employed at the company for at least six months can run for election to the works council. Furthermore, they have to be included on the electoral roll in order to exercise their right to vote, and to run for election.
Appeal to the election committee
The election committee prepares the electoral roll. An eligible employee who is not on the electoral roll is entitled to appeal its accuracy. The electoral regulations stipulate a period of two weeks from the publication of the election notice for this purpose. The election cannot be challenged at a later date without a prior appeal. The election committee must state this in the election notice.
Interim injunction as a last resort
If the appeal is unsuccessful and the employee cannot exercise their voting rights as a result, the works council election may be contested, but is not void. This means that the falsely elected works council remains in office until a final court ruling has been reached regarding the invalidity of the election. This is particularly unfortunate for the employees who intended to run for election to the works council. They are denied membership until a new election is held.
This is also an unsatisfactory situation for the respective employee. Moreover, situations like this run the risk of the election committee attempting to influence the election by leaving unwelcome employees off the electoral roll.
In these cases, those affected are only left with the option of requesting an injunction from the labor court with the aim of inclusion on the electoral roll. However, an injunction is not usually granted unless they have previously submitted an appeal regarding the accuracy of the electoral roll to the election committee.
Significance for the company
Individual employees are not the only parties with a particular interest in being included on the electoral roll. Ensuring a correct electoral roll can also be important for the employer. On one hand, there is a risk of the election being challenged. On the other hand, the election committee could attempt to ensure the election of its own preferred works council by intentionally excluding specific employees. The employer itself has no legal right to appeal the accuracy of the electoral roll. However, employers are permitted to inform employees that they have the option of appealing the correctness of the electoral roll and of requesting an injunction. The employer generally bears the costs incurred by injunction proceedings as part of the costs of the works council election.
An injunction based on inclusion on the electoral roll serves to compensate for inadequate protection of the employee with voting rights. It is in one’s best interests to submit the application for the injunction to the labor court as soon as possible after an unsuccessful appeal regarding the correctness of the electoral roll.