The ubiquitous topic of digitalisation does not stop at works council elections. Companies have great interest in offering to hold their works council elections as an online election in order to increase voter turnout at the election, save costs and avoid mistakes. This involves certain legal risks, however.
The exact way in which the works council election has to take place is set out in the German Works Constitution Act (Betriebsverfassungsgesetz – “BetrVG”) and the Election Rules (Wahlordnung – “WO”).
Roughly speaking, they provide that the votes are to be cast in accordance with rules for analogue voting similar to those applicable in parliamentary elections: voters generally cast their votes on site (at the polling station of the relevant business). To this end, they put a cross next to their preferred list of candidates on the ballot paper, using a pen, and then put the ballot paper into a ballot envelope and place it into the ballot box (Sections 11 et seq. Election Rules).
In addition, it is also possible to vote in writing (Sections 24 et seq. Election Rules). However, unlike in the case of a postal vote in the election for the Bundestag, a written vote in works council elections is only permitted in exceptional cases. To vote in writing, the person entitled to vote must be absent from the business on the election day and, therefore, be unable to cast his or her vote personally on site at the ballot box. The term “written vote” is to be understood literally, which means that in this case, too, the voter must vote analogously by making his or her mark on the ballot paper using a pen, putting the ballot paper into the ballot envelope and then sending it back/returning it to the electoral board.
According to the above, statutory rules for online elections do not exist to date. What is more, the existing rules on the casting of votes cannot be interpreted in a way that would allow digital voting.
This outdated legal framework is being increasingly criticised in practice. More and more employees work digitally, from home or on the road, and with flexible hours. A ballot-box or postal vote seems very antiquated and deters young people, in particular, from voting.
A works council that enjoys high democratic legitimacy and represents the entire workforce is, however, essential to an effective works constitution. It is in everybody’s interest to enable high voter turnout at elections. In the long term, this will only succeed with an – optional – offer of an online election. This would, at the same time, reduce costs and human error-proneness.
For this reason, various undertakings (e.g. T-Systems or Beiersdorf) have already made a conscious decision in past elections to offer online voting as an additional option. Their experience of proceeding in this manner has been positive without exception and they have especially been able to increase voter turnout at the elections.
The legislative reforms of recent years have not taken into account these considerations. The election procedure was modernised neither in connection with the general considerations regarding Work 4.0 (Arbeit 4.0) (see, for example, the “Arbeiten 4.0” white paper published by the German Federal Ministry of Labour and Social Affairs (Bundesministerium für Arbeit und Soziales – “BMAS”) in 2017) nor through the German Works Council Modernisation Act (Betriebsrätemodernisierungsgesetz), which recently came into force.
This is probably due above all to concerns about perceived security risks. Furthermore, in its 2007 ruling on voting computers (2 BvC 3/07), the German Federal Constitutional Court (Bundesverfassungsgericht – “BVerfG”) defined strict requirements that need to be met in order for the use of voting machines to be considered compatible with the principle of public elections. There are, however, providers whose software has been certified by the German Federal Office for Information Security (Bundesamt für Sicherheit in der Informationstechnik – “BSI”) and thus classified as secure.
The German legislator ventured at least a small step forward in 2020, albeit only in a peripheral area of social security law: as part of a model project, the election of the representatives of the insured may, for certain types of health insurance companies, additionally take place by online voting in 2023 (Section 194a German Social Code Book V (Sozialgesetzbuch, Fünftes Buch – “SGB V”)). Depending on the experience gained in those elections, the topic of digitally updating the works council elections might then also be put on the political agenda again.
The holding of an online election constitutes a violation of the election procedure and results in the works council election being contestable (Section 19 German Works Constitution Act). The election may only be contested, however, if the violation is susceptible of altering or influencing the election result; furthermore, the election must be contested within the two-week period allowed for this purpose.
Whether the online election additionally results in the nullity of the works council election is doubtful. Unlike the lower court, the Regional Labour Court (Landesarbeitsgericht – “LAG”) of Hamburg held in a decision from the year 2018 (8 TaBV 5/17) that this was not the case.