In 2014 – between March and May – the regular works council elections are pending throughout Germany. The German Works Constitution Act expressly grants trade unions numerous initiation, participation, consultation and monitoring rights.
Initiation of the works council election
In the event that no election committee was appointed previously or a works council is to be selected for the first time, the relevant trade union can initiate the selection of the works council through invitation to an election meeting (Section 16(2), Section 17(3) Works Consti-tution Act). Formal requirements for the invitation to the employees meeting do not exist. Therefore, the invitation can be made by posting it on the bulletin board.
By submitting an application to the labour court, a trade union can also ensure that an elec-tion committee is appointed and a negligent election committee is replaced (Sections 16(2), 17(4), 18(1) Works Constitution Act). The union also has the opportunity to submit proposals for staffing the election committee.
A trade union can become involved with the company if at least one of the union’s members is employed in the company (Federal Labour Court in AuR 936, 88).
Trade union lists
In addition to the employees entitled to vote, the trade union represented in the company can also submit its own nominations, which are released from the requirement of supporting sig-natures (Section 14(3) and (5) Works Constitution Act). The Works Constitution Act ex-pressly differentiates between nominations by the employees and trade union nominations. According to Section 14(5) Works Constitution Act, the nomination by a trade union must be signed only by two representatives of the trade union.
Canvassing by the trade unions
No regulation is to be found in the Works Constitution Act on the topic of canvassing. Never-theless, it is generally presumed that the rights of the trade union are not only limited to can-didacy and simple voting. Recourse to the constitution is, however, required to properly as-sess the permissible scope of trade union canvassing (Federal Labour Court, 14 February 1967 - 1 AZR 464/65). Since Section 2(3) Works Constitution Act excludes the "autono-mous" trade union representation of interests from the Act, the trade union powers existing in this respect are derived directly from Art. 9(3) German Basic Constitutional Law.
The constitutionally guaranteed right of the trade unions to canvass for candidates of the respective trade union list in the course of the works council elections is also recognized. Trade union advertising for their own candidates is permitted even during working hours (Federal Constitutional Court, 14 November 1995 – 1 BvR 601/9z) if operational processes are not disturbed and no significant economic burden is imposed on the employer. Only the sustained disturbance of the workflow or the industrial peace is an obstacle (Schleswig-Holstein Higher Labour Court, 01 December 2000 - 6 Sa 562/99).
Advertising efforts for trade union nomination within the company must be carried out by the employee of the respective company, however. The trade unions not represented in the company, in the absence of candidates, have no interest worthy of protection in intervening in the election campaign. The trade unions represented in the company cannot lay claim to a right of access on grounds of electoral equality for canvassing. Trade union and open lists must have the same opportunities to canvass.
Permissible forms of action:
1) Conversations: Advertising through conversations – as the simplest and most direct form of communication – is considered generally permissible (Däubler, Gewerkschafts-rechte im Betrieb [Trade Union Rights in the Company], margin note 354).
2) Distribution of publications, leaflets: The distribution of advertising material is also recognized. The trade union cannot be relegated only to verbal communication (Fed-eral Labour Court 14 February 1967 - 1 AZR 494/65).
3) Poster advertising: The fact that the possibility of having a visual presence in the company by posting placards and posters must also be given to the trade unions is es-sentially uncontested (Federal Labour Court 14 February 1978 - 1 AZR 280/77). The provision of posting areas infringes upon the property right of the employer according to Art. 14 Basic Constitutional Law, however, in this case it is outweighed by the trade union interest in having a visual presence in the company. The employer is obligated to make areas available for placards.
4) Use of email systems, Intranet: Trade unions are also entitled in principle, based on their constitutionally protected freedom of activity, to send emails for advertising pur-poses, even without the employer's consent and request by the employees, to the com-pany email addresses of the employees (Federal Labour Court 20 January 2009 – 1 AZR 515/08). The property right and the right to an established and operating business (Art. 2(1) Basic Constitutional Law) of the employer are less important than the free-dom of trade union activity, as long as the sending of the email does not lead to signifi-cant operational disturbances.
The freedom of action of the trade unions is exclusively limited by outweighing countering interests of the employer. Thus, it is naturally impermissible to prevent other colleagues from working as a result of the advertising activity or to address them against their will in the com-pany (Federal Constitutional Court, 14 November 1995 -1 BvR 601/9z). A barrier also exists where a trade union has to respect the freedom of choice. From this it follows that the trade union may also not exert any undue pressure on its members, which affects their freedom of choice (Federal Constitutional Court, 24 February 1999 E 100, 214, 221 et seq.).
Note: The employer may not in self-help do away with impermissible advertising efforts, un-less impermissible placarding is concerned. The employer is only entitled to legally assert a claim of injunctive relief against the trade union with regard to impermissible advertising.
Right of access of trade unions based on the Works Constitution Act
Pursuant to Section 2(2) Works Constitution Act, access to the company must be granted to the representatives of the trade unions represented in the company to maintain the tasks and powers mentioned in the Works Constitution Act. Some are of the opinion that Section 2(2) Works Constitution Act permits a general right of access of the trade unions. This view al-ready violates the wording. The right of access must always be tied to a specific works con-stitutional task and therefore exists in relation to the respective task (Richardi/Richard, Sec-tion 2 margin note 112 et seq.). For this purpose it is sufficient that the matter is inherently related to the works constitutional task of the trade union (Federal Labour Court, 26 June 1973 - 1 ABR 24/72).
The following are among the works constitutional tasks, for the purpose of which the trade union can demand access to the company:
1) Appointment and replacement of the election committee according to Sections 16, 17, 18 Works Constitution Act
2) Invitation to an employee meeting for the purposes of the election of the election committee (Section 17(3) Works Constitution Act). In this connection, the trade un-ions in particular are also entitled to access to the premises of the employer in order to post the invitation to such an employee meeting (Rhineland Palatinate Higher La-bour Court, 11 January 2013 – 9 TaBVGa 2/12).
3) Additional delegation of a representative belonging to the company as a non-voting member to the election committee, unless a voting member of the election committee belongs to it (Section 16(1) sentence 6 Works Constitution Act).
4) In operations with more than twenty employees, the court may also appoint external trade union members as members of the election committee (Section 16(2) sentence 3 Works Constitution Act).
5) Submission of its own nominations by the trade union represented in the company.
The right of access based on Section 2(2) Works Constitution Act is exercised by persons authorized by the trade union. The trade union is responsible for the selection of these per-sons. They may also be employees of a different company. The trade unions have to inform the employer in due time before the visit, however. In this connection, the right of access is not limited to specific operating areas, such as break rooms or the works council office (Hamm Higher Labour Court, 09 March 1972 – 8 BV Ta 2/72).
The barriers to the right of access initially arise from Section 2(2) Works Constitution Act it-self. The employer can accordingly refuse access to the trade union only in special excep-tional cases - in the case of unavoidable operational issues, due to mandatory safety regula-tions, for the protection of trade secrets. Unavoidable operational issues exist if serious im-pairments of the business operation, which are unacceptable to the employer, are envisaged (Fitting, Section 2 margin note 77). Disturbances and delays are not sufficient.
Domiciliary right of the employer
The right of access of the trade union does not eliminate the domiciliary right of the em-ployer, however, but restricts it only in a constitutionally unobjectionable manner (Federal Constitutional Court, 04 October 1976, AP No. 3 on Section 2 Works Constitution Act). An employer, however, cannot pronounce a ban on entering his premises to all trade union members. Only in especially justifiable exceptional cases can the employer issue a ban on entering his premises to individual trade union representatives for reasons related to that person individually, for instance, in the case of abuse of their powers or unreasonable at-tacks or insults to the employer (Aachen Labour Court, 08 November 2012 – 9 BVGa 11/12; Saxony Higher Labour Court, 27 March 2006 – 3 TaBV 6/06).
If access to the sessions of the election committee before the works council election is wrongly refused to a trade union representative by the employer for this reason, the trade union can enforce its right of access by means of an injunction.
Obligation of the employer to bear costs
According to Section 20(3) German Works Constitution Act, the cost of the election is to be borne by the employer (Federal Labour Court, 07 July 1999 – 7 ABR 4/98). In this connec-tion, among the costs of a works council election to be borne are also the costs of the trade union which it incurred through the commissioning of a legal representative in a decision-making process with regard to the legal appointment of an election committee. The law con-tains no restrictions in this respect (Federal Labour Court, 31 May 2000 - 7 ABR 8/99; Ba-den-Württemberg Higher Labour Court, 20 January 1999 - 2 TaBV 3/98).
The rights of trade unions have a substantial impact – particularly due to their extensive ac-cess and canvassing rights – on company operations. The position of the trade unions to-wards the employer is clearly strengthened because of this.
The employer must, however, be informed in advance in each case, in order to be able to take possible precautions, so that the visit does not disturb industrial peace or operations. Clear limits are placed on the rights of the trade unions by the requirements and the barriers of Section 2(2) Works Constitution Act.
Bernd Weller, Lawyer, Certified Specialist Lawyer for Employment Law and Partner at the law firm of Heuking Kühn Lüer Wojtek, Frankfurt am Main