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Election of the supervisory board members

Temporary workers who are eligible to vote can count for the
election of their supervisory board members
(Federal Labor Court, decision dated November 04, 2015 – 7 ABR 42/13)

In the case decided by the Federal Labor Court the Co-Determination Act (German MitbestG) applies to the election of the supervisory board. Pursuant to Sec. 9 para. 1 MitbestG the election of the employees’ representatives to the supervisory board of a company is as a rule not a direct election when a threshold of 8.000 employees is reached, but an election through delegates. This can only be changed by resolution of the eligible employees, Sec. 9 para. 2 MitBestG.

After the respective decision by the central election committee, the number of employees in the employer’s company raised to 8.341 persons due to 444 temporary workers who are employed on permanent positions and the employees’ representatives to the supervisory board were elected through delegates. 14 employees contested this arguing that calculation of the employee number was wrong and claimed that the central election committee was obliged to run the election as direct election.

So far, it had not been decided for the election of employee representatives whether the temporary workers of a company are eligible to vote and thus, must be taken into account for the threshold stipulated in Sec. 9 para. 1 MitbestG.

The Federal Labor Court confirmed this, provided that the temporary workers fill permanent positions in the company. The Federal Labor Court stated that for the definition of employees in the sense of the MitbestG the definition pursuant to Sec. 5 para. 1 Works Constitution Act (German BetrVG) is decisive. Whether or not temporary workers must be taken into account, must be determined based on the purpose of the relevant stipulation. This purpose demands that such temporary workers that fill permanent positions must be taken into account, since these employees are not just employed on a time-limited basis during peak demand periods.

This decision by the Federal Labor Court is in accordance with its permanent jurisprudence in terms of equal treatment of temporary workers that fill permanent positions on the one hand and the other employees on the other hand in order to determine the threshold stipulated in Sec. 111 BetrVG.

Practical recommendations:
The Federal Labor Court did not yet answer the question whether temporary workers must be taken into account in general for thresholds. The development of the jurisprudence shows that at least such temporary workers must be taken into account that fill permanent positions in the business organization and who are not employed for only a limited period. This is because these temporary workers have a different value for and influence within the company due to their positions and their long-term company seniority. This justifies equal treatment with the other employees. Employers should take these developments into account in future.

Lawyer and certified<br/>specialist for labor law
Author:
Lawyer and certified
specialist for labor law
Dr. Felix Hebert
hebert@buse.de

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