Stephanie Mayer 145x96

Works council election at foreign airline

In proceedings for interim legal protection, the Berlin-Brandenburg Regional Labor Court dismissed the application for temporary prohibition of measures preparing for a planned works council election (decision dated February 22, 2023 - 4 TaBVGa 1301/22).


The decision of the Berlin-Brandenburg Regional Labor Court is based on the following facts: The applicant airline is based in Malta and operates flights to and from Berlin-Brandenburg BER Airport, among other places, under a Maltese flight license. The trade union ver.di had called on the airline's flight personnel stationed at BER to elect a works council. The airline is of the opinion that it does not maintain a works council-capable organizational unit at BER. By way of interim legal protection, it wanted to obtain from the Cottbus Labor Court that no works council elections take place until this issue has been clarified in a legally binding manner.

Reasons for decision

The Regional Labor Court rejected the airline's application and found that the preparation of the works council election by choosing an election committee was not to be provisionally prohibited.

A prerequisite for the prohibition of an election is the invalidity of the intended election. The mere possibility of contesting the intended election was not sufficient to prohibit it, because according to the conception of the Works Constitution Act, establishments without works councils were to be avoided. In the event of a contestation of the election, this objective is achieved by the fact that the elected works council remains in office with all rights and obligations until the election contestation proceedings have been decided in favor of the employer, if necessary with final legal effect. A works council election is only void in very exceptional cases. The prerequisite for this is such a blatant violation of the general principles of any proper election that even the appearance of an election in accordance with the law no longer exists.

In the present case, the intended works council election was not null and void. It was at least not recognizable and obvious at first glance that there was also no qualified operating unit pursuant to Section 4 (1) sentence 1 no. 1 of the Works Constitution Act at Base BER, since there was a minimum degree of organizational independence in the airline's flight operations at BER. The legal question of whether such a qualified operating unit can also be eligible for works council representation if the main operation - as in this case - is located outside Germany and thus outside the scope of the Works Constitution Act has not yet been clarified by the highest courts. It could not be clarified in favor of the airline by way of an interim injunction because the opposing view of the trade union was justifiable and not obviously incorrect. The employees could not reasonably be expected to postpone the works council election until a legally binding decision on the existence of a works council-capable organizational unit of the airline at BER, possibly through three instances and over several years.

There is no right of appeal against this decision of the Berlin-Brandenburg Regional Labor Court in the interim legal protection proceedings.

Note for the practice

The decision is only available as a press release, but it is consistent in summary proceedings in view of the meaning and purpose of the Works Constitution Act. It is not permissible to anticipate the main proceedings. The main proceedings will therefore be of real interest, because the question of whether a works council-capable unit can exist on German territory with the main company located abroad has yet to be decided (by the highest court) and - should it come to that - is likely to attract some interest and possibly some imitators.

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