Election of the works council
According to Section 19 Para. 1 BetrVG, the works council election can be contested at the labor court if essential provisions on the right to vote, eligibility or the election procedure have been violated and a correction has not been made, unless the violation could not have changed or influenced the election result.
According to a resolution of the Seventh Senate of June 13, 2007 ( 7 ABR 44/06 ), there is a violation of essential regulations regarding the electoral process if trainees who are not employees within the meaning of Section 5 Para. 1 Sentence 1 BetrVG are to take part in the election, contrary to Section 7 Sentence 1 BetrVG. According to this regulation, employees who have reached the age of 18 are entitled to vote. Who is an employee in this sense can be found in Section 5 Paragraph. 1 sentence 1 BetrVG. The status of an employee for their vocational training requires that the trainees be integrated into the training company’s company. The trainees must be employed in or learn tasks that are also part of the professional tasks of workers or employees in this company.
According to the established case law of the Seventh Senate, trainees in pure training companies are not considered employees within the meaning of Section 5 BetrVG and are therefore in accordance with. § 7 BetrVG not entitled to vote. Your training does not take place within the scope of the technical purpose of the training company, which is limited to providing other people with practical vocational training. They are therefore not integrated into the company and are not part of the company’s employees under works constitution law
This legal situation has not changed as a result of the law reforming the Works Constitution Act of July 23, 2001. In view of this, the Seventh Senate adheres to the definition of employee under works constitution law, which is based on the operational purpose of the company. A gap in protection in the system of employee participation that was not intended by the legislature does not arise even if the provision of vocational training is not the sole or predominant purpose of the company. In this case, special representation of the interests of trainees outside the company is required in accordance with. § 51 BBiG nF, provided that the company employs five non-company trainees who are eligible to vote.