The works council election is a central element of co-determination in German companies. But what about the legality of election advertising, especially via modern means of communication such as WhatsApp?
The Cologne Labor Court had already declared a works council election invalid in January 2023 after the chairman of the election committee attempted to influence the election result via WhatsApp one day before the election. The Regional Labour Court confirmed this decision (LAG Cologne, decision of 6 October 2023 – 9 TaBV 14/23).
Works council chairman had employee contacts on WhatsApp due to his position and used this to campaign for elections
In May 2022, the works council was elected in a German company. This was a so-called list election, i.e. several candidates stood for election on a joint list.
A total of five lists took part in the election, whereby the top candidate on list 2 was also the chairman of the election board, works council chairman, daily duty planner and dispatcher. He used the WhatsApp function of the so-called broadcast list to send the same message to all contacts on this broadcast list at the same time. The individual recipients cannot see who else the message was sent to. In this way, he reached around 80% of the total number of employees in the company and thus opened up a direct communication channel between employees and the works council.
He usually used the WhatsApp function to share information from the union with employees as works council chairman. Shortly before the election, however, he used it to criticize the candidates on other lists and urged the recipients of the broadcast messages to vote for list 2.
LAG Cologne: Violation of the principle of equal opportunities by exploiting a special situation
The Higher Labor Court has now confirmed the opinion of the Labor Court of first instance that this type of election advertising significantly violates the principle of equal opportunities for candidates and thus jeopardizes the integrity of the election.
The list leader of list 2 had used his position as chairman of the works council and election committee to open up communication channels to the voters through his broadcast messages. He had only been able to obtain the employees’ cell phone numbers due to his position as chairman; other election candidates did not have this opportunity to make contact. Candidates on the other four lists did not have access to the broadcast list or the employees’ mobile phone numbers. By sending the broadcast messages, the list leader of list 2 had therefore gained an undue advantage over other election candidates and thus violated equal opportunities.
As the WhatsApp election advertisement in question was only sent out shortly before the upcoming works council election, the members of the other election lists did not have the opportunity to obtain the relevant contact details in any other way. In the election in question, there was no guarantee that every candidate had the same opportunities during the election campaign. The works council election was invalid and had to be repeated.
principle of equal opportunities is an essential electoral principle within the meaning of § 19 Para. 1 BetrVG
Although the principle of equal opportunities for election candidates is neither laid down in the Works Constitution Act (BetrVG) nor in the associated election regulations, it nevertheless constitutes such an essential electoral principle within the meaning of § 19 Para. 1 BetrVG that its violation leads to the contestability of the election.
In general, election advertising in works council elections is constitutionally protected, in particular by Art. 5 para. 1 GG (freedom of opinion) and Art. 9 para. 3 GG (freedom of association). This means that both election advertising and election campaigns are part of the democratic election process. However, the principle of proportionality under public law, which prohibits the use of impermissible means, must also be taken into account in this context. However, the conduct of the chairman of the election committee constituted such an impermissible means, according to the Regional Labor Court.
WhatsApp channels must also be available to all candidates for election advertising
The rulings of the Labor Court and the Regional Labor Court are in line with previous case law on the subject of election advertising. However, the repetition of a works council election is associated with not inconsiderable costs for the company owner.
In order to prevent such violations in the election process, election candidates should be made aware of which channels can be used for election advertising in a permissible manner. These are usually only those that are equally available to all election candidates.
A special position within the company, such as that of the election committee or, for example, the staff council, should never be used to gain an advantage over the other employees standing for election.