The period for rectifying formal defects in candidate nomination lists is three working days. This period is mandatory. The Federal Labour Court found a works council election held during the last election period to be invalid and commented on this and other formal aspects. The ruling will likely also be applicable to the new election regulations.
Federal Labour Court, decision of 20 October 2021 – 7 ABR 36/20
Facts
The parties were in a dispute over the validity of a works council election held in May 2018. In preparation for the election, the election committee issued an election notice, which the works council then announced by posting it on the notice board and via e-mail. The election committee stated that candidate nominations had to be submitted by 15:30 on Tuesday, 3 April 2018. Three nomination lists were submitted, two of which were admitted by the election committee. The admitted nomination lists were then posted on the notice board.
The third nomination list only included a copy of the candidate’s declaration of consent even though an original signed version is required. The designated list representative (Listenvertreter) was then informed that the candidate nomination would be invalid if the original was not received by 15:30 on Monday, 9 April 2018. The original was not received until after the deadline, so the third nomination list was disregarded for the purposes of the election.
The candidates on the rejected nomination list then sought to have the election declared invalid. They cited the rejection of their list and the failure to announce the lists via e-mail as grounds for invalidity. Both Oberhausen Labour Court and Düsseldorf Higher Labour Court declared the election to be invalid.
Decision of the Federal Labour Court
The Federal Labour Court confirmed that the election was invalid. According to the Court, even though the election committee had correctly rejected the nomination list due to the failure to provide an original signed version of the consent, the next steps taken by the committee had constituted an error in law:
- First of all, the election committee should have announced the admitted lists in the same way it had announced the election notice. If the works council initially opts to also announce the election notice by e-mail, the election committee must then also announce the admitted nomination lists by e-mail. The Court pointed out that the voters – to whom the election notice had been announced by means of the information and communication technology available at the establishment – generally relied on the fact that they would also receive all of the additional information relevant for the election by the same means that they had been informed about the initiation of the election.
- According to the Court, the time limit given for rectifying the mistake constituted a material error that could have influenced the outcome of the election. The election regulations stipulate a period of three working days for rectifying mistakes. Therefore, this lime limit already ended on Friday, 6 April 2018. The Court asserted that the deadline of Monday, 9 April 2018 had been incorrectly calculated and therefore constituted an error in law. It stated that, by operation of law, the time limit was started by the objection and was not optional, and that it could neither be shortened nor extended by the election committee. By communicating an incorrect deadline to the designated list representative, the election committee had violated its obligations under the election regulations. This violation could have influenced the election result, as the special urgency may not have become sufficiently clear to the representative.
Conclusion
This decision, we are happy to say, clarifies the Federal Labour Court’s previous rulings on the classification of formal defects in works council elections. The ruling will presumably be applicable to the new election regulations, which have remained unchanged in this regard.
Given that the election period is still running or has just ended, it might make sense in some cases to examine the election that was carried out. The employer also has a right to challenge the election results within two weeks of their being duly announced. The challenge is likely to be successful if any of the material provisions governing the right to vote, eligibility or the election procedure have been infringed and the situation has not been rectified. This does not apply if the infringement could not have changed or influenced the election result.
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