Multiple Voting Rights in Works Council Elections in Matrix Structures (Federal Labour Court, 7 ABR 28/24)

The order deals with the question of the establishment (Betrieb) in which employees may vote in a works council election. The background was a company with cross-site organisational and matrix structures. Some managers worked organisationally in several establishments. The employer took the view that these persons could vote only in the establishment to which they were assigned under their employment contract. Because they additionally appeared on the electoral roll of another establishment, the employer challenged the works council election.

The court made clear that the employment contract alone does not determine the right to vote. Rather, what matters is whether a person is actually integrated into the work organisation of an establishment. Anyone who in practice works in an establishment and helps shape its processes also belongs to that establishment. This can apply even if the employment contract names a different establishment. If an employee is organisationally deployed in several establishments, he or she may therefore belong to several establishments at the same time. In such cases, there may also be a right to vote in several establishments.

By way of reasoning, it was emphasised that the works council is intended to represent all employees who are integrated into the work organisation of an establishment. These employees should therefore also be able to take part in the election. Particularly in modern matrix and project structures, many employees work permanently across several organisational units. If one were to rely solely on the formal assignment in the employment contract, parts of the workforce actually affected would be excluded from co-determination. That would run counter to the purpose of the works council election.

In works council elections, the actual organisational integration of employees matters more than formal contractual assignments. Companies should therefore examine carefully where employees are actually integrated into operational processes.