Works Council election at Tesla may take place

The works council election already initiated at Tesla Manufacturing Brandenburg SE in March 2024 is not to be canceled. A termination of the election in summary proceedings is only justified if its nullity is foreseeable (Berlin-Brandenburg Higher Labor Court of March 6, 2024 - 11 TaBVGa 135/24).

Facts of the case

The decision of the Berlin-Brandenburg Higher Labor Court ("LAG") is based on the following facts: At the Tesla Gigafactory in Grünheide, a works council was elected for the first time on February 28, 2022, which consisted of 19 works council members with around 2,300 employees at the time. At the beginning of January 2024, the number of employees had risen to around 12,500. According to the statutory provisions, a works council must be re-elected before the end of the regular four-year term of office if the number of regular employees has increased or decreased significantly - by half, but at least by 50 people - after 24 months from the date of the election (Section 13 (2) no. 1 of the Works Constitution Act - "BetrVG"). The works council elected in February 2022 appointed an election committee at the beginning of January 2024 to prepare and conduct the election of a new works council with 39 members. From January 29, 2024 to February 11, 2024, there were no production operations at Tesla due to supply problems. The election committee issued an election notice on February 1, 2024, requested employees to submit nomination lists by February 15, 2024 and invited them to the works council election in mid-March.

IG Metall, as the trade union represented in the company, objected to the holding of this works council election on the grounds that the election was null and void and should therefore be canceled. This was primarily due to the fact that the period of 24 months from the previous election day on February 28, 2022 had not been waited for. In the union's view, the election committee should not have been appointed until February 29, 2024. Due to the premature initiation of the election, the employees would also not have had sufficient opportunity to draw up lists of candidates due to the production stop at the beginning of February 2024. The election committee and Tesla Manufacturing Brandenburg SE as employer assume that the legally regulated period of 24 months depends on the fact that the election itself is only held afterwards, while measures to prepare for the election are permissible before the deadline expires. Nomination lists were submitted regardless of the production stop. In any case, a possible violation of the statutory regulation was not so serious that the election could be assumed to be null and void.

The Frankfurt (Oder) Labor Court ruled on February 13, 2024 that the works council election could no longer be held and determined that the new election could only be initiated from February 29, 2024. The statutory period of 24 months must be waited for. A breach of this would lead to the election being null and void with the consequence that the election would have to be canceled.

Reasons for the decision

However, the Regional Labor Court ruled on March 6, 2024 that the election that had already been initiated should not be canceled. Cancellation of the election in summary proceedings was only necessary if its nullity was foreseeable. There had indeed been a breach of the statutory time limit. However, this violation and other violations complained of were not so serious that the nullity of the election could be assumed. A possible contestability of the election is not sufficient for a cancellation. After the election has been held, its effectiveness can be examined in detail in court if an election challenge procedure is initiated. Insofar as the trade union also wanted to enforce corrections to the election procedure in the appeal proceedings, it was unsuccessful. According to the decision of the Higher Labor Court, there is no room for ordering such corrections in summary proceedings for the termination of an election if corrections could no longer influence existing errors in the election procedure. There is no right of appeal against the decision of the Higher Labor Court in interim relief proceedings.

Note for the practice

Only in the event of one or numerous particularly serious breaches of the election regulations can a works council election be null and void from the outset. In the event of a significant change in the number of employees, the works council remains in office with all rights and obligations until the election of the new works council. However, it must immediately appoint the election committee to carry out new elections. If the works council fails to appoint an election committee, this constitutes a gross breach of duty within the meaning of Section 23 (1) BetrV if the delay is not based on special objective reasons that prevent the election committee from being appointed immediately. Therefore, the works council had a duty in this case. However, the prevailing opinion is that the cut-off date for determining the number of employees is only after the 24 months have expired. However, as the workforce had grown so significantly in this case that the requirements were met on election day in any case, the LAG did not address this point - at least in the press release. In other companies where this point is not so clear-cut, it will be advisable not to appoint the election committee too early.