A works council election must also meet all formality requirements in order to be effective. The Federal Labor Court made it clear in its decision dated September 16, 2020 (Ref.: 7 ABR 30/19) that these formality requirements also include the proper layout of the ballot papers. Otherwise faulty ballots lead to the invalidity of the election.
Article 11 (2) of the Electoral Rules governs what a ballot paper must look like. The first two candidates must be named on the lists of candidates. This means that not all candidates on the relevant list of candidates are to be named on the ballot papers.
All Candidates Listed on Ballot Paper
However, this was exactly the case in the proceedings before the Federal Labor Court. There were three lists of candidates for the works council elections, each with more than 25 candidates. In each case, not only the first two, but all candidates were listed by name on the ballot paper.
After the election had been conducted, the election committee and a trade union represented in the company contested the result. They filed a motion to declare the election invalid. As grounds, they argued that there was a violation of Art. 11 (2) of the Electoral Rules because all candidates were included on the lists. In addition, the employer had tried to influence the election in an inadmissible manner by supporting lists two and three by distributing advertising material and candy bars.
Successful Challenge to Works Council Election
The newly elected works council and the employer did not see any violation and requested for the motions to be dismissed. The electoral rules had not been violated, they argued. They both furthermore argued that the regulation in Article 11 of the Electoral Rules only determined a minimum number of candidates to be listed, but not a maximum number. They claimed that, at the very least, a possible violation had no influence on the election results and that there had not been any undue influence on the election.
The employer and the works council did not succeed with this reasoning. Like the Higher Labor Court, the Federal Labor Court also ruled that the works council election was invalid.
The Federal Labor Court explained that Art. 11 (2) Sentence 1 Hs. 1 Electoral Rules is a fundamental electoral provision. This results in the fact that only the first two candidates of the corresponding list are to be listed on the ballot papers. It is already clear from the wording of the regulation that this is not a minimum number. There is no creative leeway here.
The Federal Labor Court stated further that the result of the election could have been affected by the violation of this provision. For example, it cannot be ruled out that the eligible voters were encouraged to cast their votes in favor of the list with the most candidates. For this reason, no lack of causation of the violation for the election result can be determined.