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The Works Council Election 2022 as a Challenge for the Employer (Part 4) - Avoiding Costs - Preventing Contestation and Nullity of Elections

28 January 2022

In Part 4 of our series of articles on works council elections, we briefly summarise the consequences of mistakes in the preparation and conduct of works council elections with a specific focus on the current Covid-19 situation.

Read in German >

Following our previous contributions #1 - #3, we also present the regulations in case of errors in the preparation and conduct of this year's works council election:

1. Errors in the preparation and conduct of the election: void, voidable or inconsiderable?

Invalidity of an election is rare, but it has considerable legal consequences: if there are such gross errors and deficiencies in the works council election that there can be no question of a proper election, the election is considered legally non-existent and the works council no longer exists. The same applies if the requirements for an election were not met at all. The nullity follows from the election process itself and is not created by the labour court seized, but only recognised and established. Therefore, it is neither bound to time limits nor to a specific form of procedure.

On the other hand, the possibility of contestation, which is given in the case of most errors in the procedure, only grants certain groups the possibility to review the election procedure and, if necessary, also to force a repetition of the election, but without this having an effect on the office of the - possibly also incorrectly elected - works council in the interim period.

However, not every mistake in the election procedure has any consequences: in some cases the law simply accepts inaccuracies and mistakes, especially if there is obviously no effect on the election result. The errors are then irrelevant and the election remains effective without any legal flaws.

2. Correction by the election committee

The election committee, as the body responsible for the election, can correct errors up to the day before voting begins. If errors have been detected, the simplest way to correct them is for the election committee to pass a resolution to that effect. This is particularly possible in the case of errors that can be corrected without further ado, such as correcting arithmetical errors or dates, spelling mistakes or overtaking facts, such as the addition of a person entitled to vote due to the start of employment in the company.

A special form of rectification is the resolution of the election committee on ordinary objections: this rectification of errors also settles the error and precludes later contestability. In the case of fundamental errors, on the other hand, the preparation of the election must be terminated and the entire procedure restarted.

3. Nullity of the election

An election is null and void if it is to be regarded as legally non-existent without the need for a court decision. The court can therefore determine nullity at any time. It only comes into consideration in the case of gross and - cumulatively - obvious violations, one speaks of the "obvious stamp of nullity on the forehead of the election". Otherwise, the legal approach is to ensure protection of confidence in the validity of the election. This is in the common interest of both sides of industry, as they can rely on the elected works council being able to perform its duties effectively and conclude binding works agreements, as well as avoiding a costly new election.

Examples from case law for the invalidity of an election are, for example, that a foreign establishment is not subject to the Works Constitution Act at all, or that an establishment has already ceased to exist due to integration into another one. An election for a company in which a works council has already been elected is also void.

In view of the possible peculiarities of the election due to the ongoing Corona pandemic (issues of postal voting and election meetings, etc.), nullity should not be assumed even in the case of multiple violations: Violations of the election procedure only lead to nullity if principles have been violated so blatantly that the appearance of a lawful election is extinguished.

However, if in exceptional cases an election is to be conducted in such a way that it is likely to be null and void, the employer can enforce at the labour court, if necessary even by way of an interim injunction, that the election is to be cancelled. However, this does not apply in the case of mere contestability.

4. Electoral contestation

A violation of essential provisions on the right to vote, eligibility or the election procedure renders the election voidable if there is a possibility of the election result being influenced by this violation.

The provisions on the right to vote are those that relate to the eligibility to vote, such as the admission of persons who are not eligible to vote.

Eligibility is not observed if someone is elected who is not eligible, i.e. who is either not yet eligible to vote at all or has not yet belonged to the enterprise or company for six months.

Both the right to vote and the eligibility for election are affected if the number of members and composition of the works council are determined incorrectly.

A particularity in this context applies to the electoral list: Since entry in the electoral list is a formal prerequisite for exercising the right to vote and stand for election, there may be violations of the right to vote and eligibility if the electoral board has not drawn up the electoral list correctly. However, an objection to the accuracy of the electoral list may only be lodged with the electoral board within two weeks of the issuance of the election notice; thus, the prior objection to the accuracy of the electoral list has recently become a prerequisite for contestation by those entitled to vote. Employers or a trade union may contest the election even without a prior objection.

Finally, as far as the grounds for contesting a violation of the electoral procedure are concerned, the case law is extensive; only a few groups of cases can be mentioned here:

  • Misunderstanding of the concept of establishment or incorrect determination of the number of works council members
  • Financial and other support of a group of candidates by the employer
  • Incorrect appointment of the election committee
  • Incorrect handling of election proposals, e.g. additions to election proposals after the deadline, deletion of candidates without the consent of all signatories; non-admission of proper election proposals
  • Design of the ballot paper contrary to the election regulations
  • Violation of the secret ballot, e.g. through different designs of the ballot papers or lack of suitable arrangements for unobserved voting
  • Violation of the rules on counting votes, which is regulated in detail in the electoral regulations for good reason. Particularly relevant in view of the expected volume of postal voters: before the close of voting, the postage-paid envelopes must be opened in open session
  • Defects in the election notice, such as its not being properly announced, missing or incorrect indication of the location of the polling stations, incorrect indication of the number of seats allocated to the gender in the minority. Important in times of pandemic: If many employees are not in the company (due to short-time work or home office), the election notice must also be announced by other means (e-mail, intranet, post). All employees must be able to receive notice of the election notice (see also Part 3 of our series: The Works Council Election 2022).
  • Admission of postal voting without the prerequisites being met: it is not at the discretion of the election committee, even in the pandemic, to generally admit postal voting because the secret ballot cannot be controlled. Admission on the basis of the circumstances in the individual case in accordance with the electoral regulations does not raise any objections, and refusal to allow postal voting is in itself a ground for challenge.
  • Disregard for the freedom to vote and equal opportunities for candidates
  • Distribution of works council seats between the sexes without consideration of the minimum quorum

5. Electoral contestation requires that the violation has effects on the election results

Despite the violation of an essential election rule, the election is not contestable if, hypothetically speaking, the same result would have been chosen without the violation. The procedurally flawed election need not be repeated only if no other election result would have been obtained. Whether the interference was intentional or accidental, however, is irrelevant; if there is a possibly changed election result due to the error, the election must be repeated.

The works council election is contested at the labour court in a special resolution procedure, for which a preclusion period of two weeks from the day of the announcement of the election result applies. It is not necessary to inform the works council or election committee in advance.

What is new, as already mentioned, is that contestation by those entitled to vote on the grounds of errors in the electoral list is excluded, unless an objection to the accuracy of the electoral list has been lodged beforehand. A challenge by the employer is also excluded insofar as it is based on the fact that the electoral list is incorrect and that this incorrectness is based on the information provided by the employer. A violation of essential provisions on the right to vote, eligibility or the election procedure renders the election voidable if there is a possibility of the election result being influenced by this violation.

6. Legal effect and procedure of the electoral contestation

The effect of the challenge is limited if the defect relates only to the election of one works council member: Only the election of this one member is declared invalid, the rest of the works council remains in office. In the case of proportional representation, the next candidate on the list of candidates moves up, in the case of a majority vote, the candidate with the next highest number of votes moves up.

If the election as a whole is contested, the defectively elected works council is not retroactively annulled by the contestation, but it loses office for the future from the time the decision becomes final. The company is without a works council. Duties and powers cease and do not continue until a new election is held. Nothing changes for the works council members for the past; above all, the special protection against dismissal remains in force for them during this period.

What are the next steps after a successful election? How should the employer and the works council organise their future cooperation in a meaningful and mutually beneficial way? We explain this in the fifth part of our series.

If you have any questions about the works council election, our colleagues in our offices in Berlin, Düsseldorf, Cologne and Munich will be happy to help you at any time by phone or e-mail.

Further Reading