LAG Berlin-Brandenburg - 26 TaBVGa 436/23
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| LAG Berlin-Brandenburg - 26 TaBVGa 436/23 | |
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| Court: | LAG Berlin-Brandenburg (Germany) |
| Jurisdiction: | Germany |
| Relevant Law: | Article 9(1) GDPR § 2(4) WO (DE) § 26(3) BDSG |
| Decided: | 21.04.2023 |
| Published: | |
| Parties: | Election Commitee of the Workers Council of SuperVista AG SuperVista AG d/b/a brillen.de |
| National Case Number/Name: | 26 TaBVGa 436/23 |
| European Case Law Identifier: | ECLI:DE:LAGBEBB:2023:0421.26TABVGA436.23.00 |
| Appeal from: | ArbG Cottbus (Germany) 3 BVGa 5/23 |
| Appeal to: | |
| Original Language(s): | German |
| Original Source: | Landesrecht Brandenburg (in German) |
| Initial Contributor: | n/a |
Regional Labour Court Berlin-Brandenburg upheld employer's duty to provide all necessary personal data to the electoral committee for conducting works council elections, validating data processing under statutory obligations.
English Summary
Facts
A dispute arose about material required by the election committee for conducting works council elections at an online eyewear retailer employing nearly 400 people. The employer had partially complied with requests by the election committee but withheld some email and postal addresses, citing privacy concerns and the feasibility under data protection laws. The matter was taken to court to resolve whether the employer must provide complete information.
Holding
The court affirmed the employer’s obligation to provide the complete list of email and postal addresses, detailed by location and job function, as required by the election committee to smoothly conduct the works council elections. The ruling referenced multiple laws, including § 24 WO and § 26 BDSG, stating the processing of personal data for election purposes is lawful without employee consent, due to its necessity for the election process. The court also clarified that data protection concerns did not outweigh these statutory obligations.
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English Machine Translation of the Decision
The decision below is a machine translation of the German original. Please refer to the German original for more details.
Guiding Principles
1. For departments and small operations that are geographically far from the main operation, the election committee may decide on written voting in accordance with § 24 Paragraph 3 Sentence 1 WO.
2. The term "geographically far" in the sense of § 24 Paragraph 3 WO is to be understood broadly in accordance with the intent of the regulation, which is to facilitate the participation of staff members in the works council election.
Whether separate polling stations should be set up in all departments or small operations or whether written voting should be decided for the employees is at the discretion of the election committee (cf. LAG Berlin-Brandenburg, 7 May 2021 - 5 TaBV 1160/19, Para. 57 with references).
3. The employer is not obligated to provide the necessary information to the election committee if they could use the same argument to obtain an injunction to prohibit or stop the intended works council election.
This is only the case if a void works council election is being conducted. The potential contestability of the election is not sufficient. Neither a misunderstanding of the concept of a business nor the application requirements of § 24 WO generally suffice for this (cf. Hessisches LAG, 10 August 2020 - 16 TaBVGa 75/20, Para. 17).
4. The obligation to provide the documents identified in the court ruling applies also to the staff members at the main operation and those working at locations where postal voting is not possible or intended.
It is necessary for the election committee to have all data in advance to be able to make and implement decisions about individual postal voting applications (cf. Hessisches LAG, 10 August 2020 - 16 TaBVGa 75/20, Para. 16).
5. There are no data protection concerns against the provision of personal data (Fitting, BetrVG, 31st Ed. 2022, § 24 WO 2001, Para. 14). The data of the staff members (addresses) are legally processed by the employer. The election committee needs these to fulfill its statutory obligations under § 24 WO. It is subject to confidentiality.
It does not matter significantly that it cannot yet be fully foreseen whether the election committee will need all private addresses of the staff members.
6. The transmission of data by the employer and the subsequent data processing by the election committee are necessary for the eligible employees to participate in the works council elections and are legally permissible under § 26 Para. 1 BDSG and – for sensitive data under Art. 9 Para. 1 GDPR, such as the indication of inability to work – under § 26 Para. 3 Sentence 1 BDSG without the employees' consent (BR-Drs 666/21, 20, 24, 26; Boemke/Haase NZA 2021, 1513, 1519; Richardi BetrVG/Forst, 17th Ed. 2022, WO § 24 Para. 10; Löwisch/Kaiser/Klumpp-Wiebauer, BetrVG, Appendix 1 First Ordinance for the Implementation of the Works Constitution Act (Election Regulations – WO), Para. 7; likewise Klose, NZA 2021, NZA 2021, 1301, 1302).
Ruling
The employer's appeal against the decision of the Labour Court Cottbus dated 13 April 2023 – 3 BVGa 5/23 – is rejected with the stipulation that the ruling is revised as follows:
1. The employer is ordered to provide the election committee with the postal addresses and official email addresses of all staff members employed at the headquarters in Königs Wusterhausen, the branches, and other operational sites as well as in the area of Remote Optic working from home, teleworking, or mobile work in the form of an alphabetically ordered list of individuals, showing each name, their respective official email address, and postal address, along with the respective location of assignment.
2. The employer is further ordered to inform the election committee about the names of the staff members who regularly work remotely from home or at teleworkplaces.
Reasons
I. The parties are disputing in an expedited procedure over the documents to be provided to the election committee for conducting a works council election.
The employer sells glasses through the online portal brillen.de. It employs nearly 400 people in total. Each of the approximately 183 branches employs 1 to 2 staff members. The headquarters, with between 100 and 120 employees, is located in Königs Wusterhausen. There is an administrative office in Bayreuth with fewer than five staff members and a development center in Wuppertal. Some staff members are employed in the area of so-called Remote Optic with teleworkplaces or mobile work.
A dispute over an election meeting to appoint the election committee was settled by court on 25 January 2023. The election committee was appointed on the agreed date (2 March 2023). The election committee is preparing the works council election at the employer's premises. On 3 March 2023, the election committee requested the employer to provide all necessary data for the election, especially the personal data for creating the voter list, as well as the email addresses and private addresses of all employees. On 15 March 2023, the board member responsible for the matter sent an initial version of a personnel list. It did not include email addresses or postal addresses. On 16 March 2023, the election committee requested the employer to complete the documents. Also on 16 March 2023, the election committee decided to conduct postal voting for the vast majority of locations (except in Leverkusen) and for all employees working from home or teleworking.
On 20 March 2023, Mr. A declared on behalf of the employer that they would not accept postal voting, arguing it is a special case by law. Moreover, it had already been established in the first court dispute that the election should be held in person at the company's headquarters.
On 23 March 2023, Mr. A sent another personnel list. This list now included names, birthdates, gender, and hiring dates. However, it was still unclear who worked in small departments, from home, or at teleworkplaces. The birthdate of two employees (B and C) was missing. Regarding Mr. B, the employer stated he was a minor; Mr. E would leave before the election. Email and postal addresses were not provided. The list did not show how many staff members were working in each branch, who worked from home, or at a teleworkplace. The parties dispute whether the election committee can gather this information from the employer's intranet.
Each staff member has their own official email address, generally composed as follows:
- First letter of first name.Last name@supervista.de
All company communication is managed through these email accounts.
In the meantime, the employer has informed the election committee about the employees who will likely not be present at the main operation from the anticipated date of the election announcement until the expected date of the election due to known reasons such as inability to work, vacation, maternity leave, or parental leave. During the hearing before the chamber, the employer's representatives also provided Mr. B's birthdate and explicitly stated again that Mr. E would leave the company. Accordingly, the election committee withdrew its related applications during the hearing, which is reflected in the revised ruling.
The election committee argued that the employer is obliged to provide the specific email addresses, as they are needed to publish the voter list and the election announcement, § 2 Paragraph 4 Sentence 2 and § 3 Paragraph 4 Sentence 2 Election Regulations (WO). The election announcement can be additionally or exclusively transmitted electronically. The committee should not have to compile the email addresses themselves. Not all email addresses are active or actively used. There are name duplications, and the composition of the email addresses in these cases is unknown. The postal addresses are needed to send the postal voting materials according to § 24 WO. The claim arises not only from § 24 Paragraph 2 WO but also from § 24 Paragraph 1 WO. The employer is only not obliged to provide the information if they could achieve the cancellation of the election with the same argument. § 26 Paragraph 1 Sentence 1 BDSG explicitly allows the processing of employees' personal data for this purpose. The committee needs the information about employees likely to be absent on the election day, as well as other employees, as applications are made by those not present on the election day. The birthdate is required to verify voting rights/eligibility.
The election committee requested:
1. The respondent to provide the election committee with the postal addresses and email addresses of all employees in the headquarters, branches, and operational sites, as well as in the area of Remote Optic working from home, teleworking, or mobile work.
2. The respondent to inform the election committee about the employees who regularly work remotely from home or at teleworkplaces and those expected to be absent at the main operation from the election announcement until the election date on 11 May 2023 due to known reasons.
3. The respondent to inform the election committee about the birthdates of employees C and D.
4. ...
The employer requested the rejection of the applications. The election committee could create the email addresses based on the personnel list. Providing all postal addresses was unnecessary. Staff members could be reached by post through the headquarters in Königs Wusterhausen, branches, and locations. The election committee was aware of all branch addresses, which it did not dispute. The employer also argued it was only obligated to provide addresses for those not reachable at the operation. The election committee could ask staff members for postal addresses via known email addresses. Requesting all postal addresses would amount to an impermissible data stockpiling, exposing the employer to potential fines and injunctions.
The employer was ready to provide addresses if the conditions of § 24 Paragraph 2 WO were met, i.e., if staff members were not reachable on-site.
The Labour Court granted applications 1) to 3) and reasoned that the election committee need not compile email addresses according to the pattern "1st initial.Last name@supervista.de". There was no rule for name duplications, e.g., for D. and E. The employer must also provide the postal addresses of all staff members. The claim follows from § 24 Paragraph 2 WO. Since the election committee decided to conduct postal voting for most departments and branches and all employees working from home or teleworking, the employer's obligation to provide postal addresses follows from § 24 Paragraph 3 Sentence 2 in conjunction with Paragraph 2 WO. The election committee need not rely on the branches and locations for contact. The time-bound nature of the election procedure prohibits this "detour". The election committee also has a right to the addresses of the immediate voting staff. The Labour Court reasoned that the election committee must react very quickly ("immediately") to requests for postal voting materials. This would not be possible if it had to request each address from the employer. Providing all postal addresses is not an impermissible "data stockpiling" that would expose the employer to fines or injunctions. Contrary to the employer's opinion, there are no data protection concerns. The staff members' data (addresses) are processed legally and with employee consent. The election committee needs these to fulfill its statutory obligations under § 24 Election Regulations of the Works Constitution Act. Additionally, the election committee has a right under § 24 Paragraph 2 Sentence 2 WO to be informed about which staff members regularly work from home or at teleworkplaces and those expected to be absent at the main operation from the election announcement until the election date. The election committee must send voting materials to these staff members proactively. There are no concerns about a ground for the injunction.
The employer appealed the Labour Court's decision of 13 April 2023 with a submission received by the Regional Labour Court on 18 April 2023. The employer repeated its first-instance arguments, disputing both the claim and the ground for the injunction. It cited the employees' right to informational self-determination. After it became known that the election committee demanded addresses, 28 staff members objected to the disclosure of their personal data. A name list was provided. The employer argued that the data were unnecessary. Data should only be collected from the affected individuals. The election committee could contact staff members via email and ask for addresses if they wished to vote by post. This would be a milder measure. The ground for the injunction was also lacking. The election committee was not forced to conduct the election within specific times. Therefore, the employer requested:
The decision of the Labour Court Cottbus of 13 April 2023 - 3 BVGa 5/23 - be amended and the applications of the election committee be rejected.
The election committee requested the rejection of the appeal, referencing its first-instance arguments. There were no data protection concerns. § 26 Paragraph 1 BDSG provided a legal basis. The addresses of all staff members were necessary under § 24 Paragraph 1 WO so the election committee could react quickly. The employer's claim that staff members had threatened injunctions and damages was denied. This was not substantiated.
For details, refer to the parties' submissions from 18 and 20 April 2023 and the hearing protocol from 21 April 2023.
II.
The appeal is admissible. It was filed and substantiated on time and in the proper form.
The appeal is, however, unfounded.
1) The Labour Court correctly concluded that the employer is obligated to provide the election committee with the postal and official email addresses of all staff members employed at the headquarters, branches, and other operational sites, as well as in the area of Remote Optic working from home, teleworking, or mobile work.
a) Since the election committee intends to conduct postal voting in departments and small operations, this follows from § 24 Paragraph 3 Sentence 2 WO in conjunction with § 24 Paragraph 2 Sentence 2 WO. For departments and small operations that are geographically far from the main operation, the election committee may decide on written voting in accordance with § 24 Paragraph 3 Sentence 1 WO. A department is aligned with the purpose of the main operation and integrated into its organization. However, it is organizationally separable and relatively autonomous from the main operation. The degree of autonomy is decisive for distinguishing between a business and a department, which is expressed by the extent of managerial power. If the managerial power exercised in the organizational unit extends to all essential functions of the employer in personnel and social matters, it is an independent business within the meaning of § 1 Paragraph 1 BetrVG. A department requires a minimum level of organizational independence from the main operation. This is sufficient if a managerial power determining the deployment of employees is institutionalized in the organizational unit and exercises the employer's directive rights. The term "geographically far from the main operation" used in § 24 Paragraph 3 WO does not coincide with the similarly worded term in § 4 BetrVG. Otherwise, the regulation of Paragraph 3 would largely be redundant since geographically distant departments under § 4 BetrVG generally elect their own works council. The term "geographically far" in the sense of § 24 Paragraph 3 WO is to be understood broadly in accordance with the intent of the regulation, which is to facilitate the participation of employees in the works council election. The decisive factor is whether it is reasonable for employees in departments or small operations outside the main operation, considering existing or potentially provided additional transport options by the employer, to personally cast their vote at the main operation. Whether separate polling stations should be set up in such cases in all departments or small operations or written voting should be decided for the employees is at the discretion of the election committee (cf. LAG Berlin-Brandenburg, 7 May 2021 - 5 TaBV 1160/19, Para. 57 with references).
The employer is only not obligated to provide the required information if they could obtain an injunction to prohibit or stop the intended works council election with the same argument used to refuse the requested information. According to the Federal Labour Court's case law, this is only the case if a void works council election is being conducted. The potential contestability of the election is not sufficient. An election is only void in special exceptional cases where the violation of general principles of any proper election is so significant that even the appearance of a law-compliant election is no longer present. It must be an obvious and particularly gross violation of the election regulations. Neither a misunderstanding of the concept of a business nor the application requirements of § 24 WO generally suffice for this (cf. Hessisches LAG, 10 August 2020 - 16 TaBVGa 75/20, Para. 17).
Considering the employer's argument, there are no indications that the election committee intends to conduct postal voting in nearly all departments and small operations in such a way that it constitutes a significant violation of election regulations. The election committee made it clear during the hearing that it did not intend to exceed the limits of its discretion. Therefore, the election committee is obligated to send postal voting materials to the affected staff members without their request, for which their addresses are needed.
b) The obligation to provide the documents identified in the court ruling also applies to the other staff members, particularly those at the main operation and the operational sites where postal voting is not possible or intended. The election committee must send postal voting materials to eligible employees upon request according to § 24 Paragraph 1 WO. This must be done very quickly ("immediately") depending on the timing of the postal voting request. It is impractical if the election committee must request each address from the employer. Therefore, the election committee must have all data in advance to implement its decision as a body regarding each postal voting request. The election committee cannot be referred to file a new injunction request after the employer's refusal in the event of a postal voting request due to time constraints (cf. Hessisches LAG, 10 August 2020 - 16 TaBVGa 75/20, Para. 16).
c) There are no data protection concerns against the provision of personal data (Fitting, BetrVG, 31st Ed. 2022, § 24 WO 2001, Para. 14). The data of the employees (addresses) are legally processed by the employer. The election committee needs these to fulfill its statutory obligations under § 24 WO. It is subject to confidentiality. It does not significantly matter that it cannot yet be fully foreseen whether the election committee will need all private addresses of the employees. This cannot be definitively determined at present. Conducting another injunction procedure after a refusal by the employer in the case of a postal voting request could be too late due to the imminent works council election (cf. Hessisches LAG, 10 August 2020 - 16 TaBVGa 75/20, Para. 17). The data transmission by the employer and the subsequent data processing by the election committee are necessary for eligible employees to participate in the works council elections and are legally permissible under § 26 Paragraph 1 BDSG and – for sensitive data under Art. 9 Paragraph 1 GDPR, such as the indication of inability to work – under § 26 Paragraph 3 Sentence 1 BDSG without the employees' consent (BR-Drs 666/21, 20, 24, 26; Boemke/Haase NZA 2021, 1513, 1519; Richardi BetrVG/Forst, 17th Ed. 2022, WO § 24 Para. 10; Löwisch/Kaiser/Klumpp-Wiebauer, Betr
VG, Appendix 1 First Ordinance for the Implementation of the Works Constitution Act (Election Regulations – WO), Para. 7; likewise Klose, NZA 2021, NZA 2021, 1301, 1302).
d) The same applies to the provision of official email addresses. It is not the election committee's task to compile or even create these, especially since it can lead to uncertainties. The employer must provide these – like the postal addresses – in a properly alphabetized list with the respective location of assignment. The chamber has specified the ruling to avoid enforcement problems since the parties disputed the form in which the information should be provided, and the employer claimed to have already fulfilled the election committee's claim, which the chamber does not accept. There is also a lack of comprehensible presentation and any substantiation by the employer. Fulfillment requires that the information is provided as described in the ruling.
2) The employer must also provide the election committee with information about which employees regularly work remotely from home or at teleworkplaces. Since 2021, employees known to the election committee as being absent from the operation from the election announcement until the election date no longer need to request postal voting (§ 24 Paragraph 2 No. 2 WO). This regulation aims to ensure that employees absent due to the suspension of employment or long-term inability to work receive postal voting materials by default (Düwell/Sachadae, 6th Ed. 2022, BetrVG, WO § 24 Para. 6). For the election committee to fulfill its duty under § 21 Paragraph 2 Sentence 1 WO and verify the prerequisites of the regulation, it needs the names and addresses of all (likely) absent employees and general information on the reasons for their absence based on the categories of § 24 Paragraph 2 Sentence 1 No. 1 and 2 WO (correctly Boemke/Haase NZA 2021, 1513, 1519). The employer has partially fulfilled the election committee's claim by providing information on employees likely to be absent due to known reasons such as inability to work, vacation, maternity leave, and parental leave.
3) Item 3 of the ruling has been resolved as the employer's legal representative provided the information during the hearing, and the election committee adjusted its application accordingly.
4) The Labour Court correctly concluded that there is also a ground for the injunction. The chamber can reference the Labour Court's reasoning. The election committee is legally obliged to prepare and conduct the election shortly after its appointment. Conducting a main proceeding first would no longer be possible. It would result in significant procedural delays.
