Challenging a works council election

Digital platform work involving delivery drivers does not automatically mean that a separate works council can be elected in every delivery area: The Federal Labor Court clarifies the requirements for organizational units eligible for a works council in app-based work models (BAG January 28, 2026 – 7 ABR 23/24).

Facts of the case

The ruling by the Federal Labor Court is based on the following facts: The employer operates a platform-based food delivery service and organizes its nationwide operations through central “hub cities” as well as numerous “remote cities” that serve solely as delivery areas. While the hub cities employ administrative staff in addition to delivery drivers, the remote cities employ only drivers who handle their scheduling and communication primarily via an app.

In several of these remote cities, independent works councils were elected in 2022 and 2023. The employer challenged these elections, arguing that the remote cities were not establishments or parts of an establishment eligible for a works council within the meaning of the Works Constitution Act.

The state labor courts upheld this view and declared the elections invalid.

Reasons for the decision

The Federal Labor Court concurred with the lower courts and dismissed the appeals filed by the works councils. Under Section 1 of the Works Constitution Act (BetrVG), works councils may only be elected in a single establishment or an independent part of an establishment (Section 4(1), first sentence, BetrVG). An establishment exists when an organizational unit is managed by its own management in essential personnel and social matters. A division of an establishment must possess at least a minimum degree of organizational autonomy from the main establishment. These requirements explicitly apply to work models that are predominantly digitally controlled, such as via an app.

With regard to the Remote-Cities, the court found that the required degree of organizational autonomy was not present. The organization as a delivery area with its own duty roster was insufficient for this purpose. The decisive factor was that the Remote-Cities lacked independent management structures and an organization extending beyond the common interests of the delivery drivers.

Practical guidance

The decision is currently available only as a press release. According to the press release, the following also applies to modern platform work: The election of independent works councils requires a clear organizational demarcation and management structure within the respective business or division. The ruling thus provides legal clarity for companies with numerous business units that lack their own management and is therefore likely to remain relevant beyond the context of platform work. Even though calls to adapt labor law provisions to the modern world of work continue unabated, this decision makes it clear that courts can still reach reasonable outcomes within the framework of existing regulations. A fragmentation into a multitude of mini-committees is therefore not compatible with the Works Constitution Act. However, the decision does not fundamentally preclude the possibility of forming employee representative bodies; in this case, a works council for the Hub Cities would likely have been conceivable.