A works council election can be held in accordance with Section 19 Para. 1 BetrVG can be challenged at the labor court if essential provisions regarding 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. A violation of Section 9 BetrVG also leads to the invalidity of the works council election.
According to this regulation, the number of works council members to be elected depends on the number of employees “as a rule” employed in the company. If the employer regularly employs temporary workers in his company, with whom he concludes fixed-term employment contracts for one day when necessary, the average number of employees on a working day counts according to a resolution of the Seventh Senate of May 7, 2008 (- 7 ABR 17/07 -). temporary workers employed in addition to the employees generally employed in the company. § 9 BetrVG.
The law regulates the number of works council members to be elected. This cannot be deviated from through collective agreements, works agreements or other agreements, unless there are not enough eligible employees or willing to take on the position.