Challengeable works council election.

 The self-opinionated election leader (Higher Labour Court of Munich, ruling dated 16.05.2017 – 6 TaBV 108/16).

Employers are able to successfully challenge the forthcoming works council elections due to errors in the elections, as demonstrated by the Higher Labour Court of Munich’s ruling.

During the election day, the election leader was for the most part alone in the voting room. In the first few hours, he did not include the employees having voted on the voters’ list. After receiving a tip, the election leader added them to the voters’ list – from memory and by asking other colleagues. The later voters were then immediately included on the voters’ list. When the election results were announced, 66 valid votes were recorded. However, the record of votes contains a note that, according to the voters’ list, 63 votes were cast.

The Higher Labour Court of Munich has approved the challenge of the works council election. The works council election is not null and void due to legal errors, but can be challenged. The violations concern essential and mandatory electoral provisions, which were not subsequently corrected, and may have an impact on the election results. According to the applicable electoral regulations, two members of the electoral board or one member of the electoral board and one electoral assistant must always be present in the room during the voting procedure. This is to ensure that the voting rules are respected. For almost the entire duration of the vote, the chairman of the electoral board was the only person present in the voting room. As a result, a lack of control mechanisms made it possible to (purposely) manipulate the election process.

Moreover, the chairman of the electoral board did not initially include the voters on the voters’ list, but added their names later from memory. According to the electoral regulations, however, a voter may only cast his or her vote in the ballot box when the voting has been recorded on the electoral register. It is not possible to present proof of voting other than that on the voters’ list. In particular, the electoral regulations do not provide for any subsequent production, correction or supplementation of the voting record. This means that it was no longer possible to determine who and how many people had already cast their votes. This also means that it was no longer possible to ascertain who voted, whether the person was actually entitled to vote or whether double votes were cast. There was also the possibility of deliberate manipulation. Finally, 66 votes were also found in the ballot box, while only 63 voters were on the voters’ list. Three votes were not added to the voters’ list until the electoral record was drawn up, a considerable amount of time after the elections had been held. Thus, the electoral record does not reflect the actual circumstances at the time of the elections.

Due to these violations, proof of proper conduct of the elections is not possible. Manipulation of voting or the validated votes cannot be ruled out as only the election leader was in the voting room. Proof of proper conduct of the elections is not possible, as the entries on the voters’ list were partly delayed and added from memory, and apparently incomplete. These violations have not been rectified and are also excluded. It remains to be seen whether the Federal Labour Court even accepts that the election is null and void on the grounds of the violations.

Recommendation for practice:

Violations of the formal provisions of the works council election can make a works council election challengeable. This makes it possible to avoid an undesirable works council. Unfortunately, the procedures are usually drawn out over a longer period of time. Nevertheless, legal protection can also be obtained by means of an interim injunction.