Month: March 2022

Again and again, political disputes lead to problems in the employment relationship. The most recent case: A bartender in a luxury restaurant in Baden-Baden had commented on the Russian invasion of Ukraine and generally about Russians in an Instagram video – and was fired for it.

You can read the entire article here read.

 On March 16.03.2022, XNUMX, the BAG published in its press release the tenor of an interesting decision with regard to holding works council elections in the form of postal votes. 

According to Section 19 (1) BetrVG, a works council election is ineffective if essential regulations on the right to vote, eligibility or the election procedure have been violated, unless the violation could not change or influence the election result. Section 24 of the Ordinance on the Implementation of the Works Constitution Act WO regulates the cases in which the Electoral Board must allow postal voting. If the election does not meet the requirements of § 24 WO, the election can be contested and ultimately lead to ineffectiveness. 

• The case decided by the BAG concerned a works council election at a Volkswagen AG plant in Hanover. In the works council election held in April 2018, the electoral board decided to vote in writing for the employees of all production sites outside the closed factory premises. 

• Three of these business premises are located directly adjacent to the fenced factory premises. 

• After the results of the election were announced, nine employees who were entitled to vote contested the election on the grounds that the postal vote was not allowed to be decided for all of the business premises outside the closed factory premises. 

With reference to Section 24 (3) WO, the BAG stated that the electoral board can only decide to vote in writing for parts of the company and very small companies that are geographically far away from the main company. However, there can be no question of a spatially large distance if the parts of the company are located adjacent to the factory premises. 

The general rule: According to the WO system, postal voting is an exception that requires justification. The principle is that voting is done by handing in the ballot papers in person. Election manipulation can be ruled out much better in the presence voting. 

Postal votes for works council elections according to § 24 WO are only possible in the following “exceptional cases”: 

In the event of an absence from the company - A distinction is made between three cases: 

• Absence for "personal" reasons: If the employee entitled to vote is absent from the company, e.g. vacation. In accordance with Section 24 (1) WO, postal voting is only possible at the request of the employee. 

• Eligible voters who are known to the electoral board 

1. at the time of the election according to the nature of their employment relationship, in particular those employed in the field or with telework and those who work from home, or 
2. from the issuing of the election declaration to the time of the election for other reasons, in particular in the event of suspension of employment or incapacity to work, are unlikely to be present in the company. 
   
   This regulation also includes people who are on parental leave, for example. 

• Geographically remote part of the business or small business: 

The electoral board can decide to vote in writing (postal voting) for parts of the business and very small businesses if they are far away from the main business, but belong to the main business under works constitution law. 

For the geographically large distance, it must be determined whether, if the works council elections were properly carried out, a separate polling station would have to be set up for the part of the company or the micro-company in order to give the employees there a reasonable polling station 

way to give them the opportunity to cast their vote in person. If this is the case, such a polling station can be replaced by written voting. 

In the current works council elections, many electoral boards tend to “generously” allow postal votes because of Corona. In view of the BAG's decision, electoral boards should always carefully check the requirements for postal voting. 

The Federal Labor Court (BAG) has recently ruled that prospective students who have to complete a compulsory internship in order to study are not entitled to the statutory minimum wage. The statutory minimum wage was EUR 2015 when it was introduced in 8,50 and has since risen to EUR 9,82 gross.

The case:

Specifically, a prospective doctor who had applied to a private university for a place to study medicine sued a clinic where she worked as a nurse for six months for payment of the statutory minimum wage.

According to the study regulations, among other things, the completion of a six-month nursing service was a prerequisite for admission to the course. The payment of remuneration was not agreed between the contracting parties.

BAG: No entitlement to minimum wage for compulsory student internships

The lower courts had dismissed the lawsuit. With a decision of January 19.01.2022, 1, the Federal Labor Court also confirmed the decision of the LAG Rhineland-Palatinate and stated that the defendant was not required to pay the statutory minimum wage according to § 22 in conjunction with § 1 paragraph 2 sentence 1 half clause. XNUMX MiLoG.

Justification of the BAG:

The plaintiff does not fall under the personal scope of application of the Minimum Wage Act, since it can be clearly inferred from the explanatory memorandum that not only compulsory internships during the course of study, but also those that are already mandatory in study regulations as a prerequisite for taking up a certain course of study, are excluded from the recording of the statutory minimum wage are excluded. Incidentally, this applies not only to state universities, but also to private universities. 

Significance for practice:

As a result, this means that not only internships that are completed during the course of study are excluded from the regulation for payment of the statutory minimum wage, but also internships that are intended as a prerequisite for admission before the start of the course. This decision is interesting for prospective students as well as for employers who offer such internships.   

(cf. Federal Labor Court, judgment of January 19, 2022 - 5 AZR 217/21; LAG Rhineland-Palatinate, judgment of March 16, 2021 - 8 Sa 206/20)