Taking action instead of legal action: or why losing a court case has blessed us with new opportunities

 Rule of law means accepting the decision of a court, even though a decision might be a stinging disappointment. In our case, the disappointment doesn’t result from the fact that there will now be a new election but rather from the fact that important legal issues were not clarified.

We accept that an Election Board is permitted by law to challenge an election it has just coordinated. We also accept that the Austrian Supreme Court was not willing to reconsider a 30-year-old ruling issued at a time when official notifications for Betriebsrat elections were tacked to a company notice board rather than announced via email and that the Court allowed the election to be contested despite no objections having been made to the voter roll.

The situation this creates is one rife with the potential for abuse since those entitled to sue can base their decision to sue on the outcome the election. In other words, if an employee notices that he or she or other eligible voters are missing from the electoral roll, it would be unwise to file an objection. Instead, they could wait until the results were in and only file a lawsuit if their party didn’t win.

It seems as if the whole legally mandated procedure for raising objections to the voter roll was completely superfluous.

But there’s a third issue that’s more complex. The plaintiff original claimed that roughly 150 people had been mistakenly left off the roll and that 4 seats in the Betriebsrat were at stake. In the courts whittled that down to 19 people (2 of whom voted). Statistically, 11 additional votes for the plaintiff would have been sufficient to change the ratio of seats from 11:5 to 10:6.

The problem is that only provisions in the Labor Constitution Act (ArbVG) were taken into account, but not the Universities Act. As members of the Betriebsrat and the union, we are in favor of people being considered employees of a company or university as soon as they start performing services for them. However, the Universities Act also clearly states that only the rector has the power to hire. Still, we all know how this is handled in practice. Lecturers, student assistants, tutors and project staff are not always registered immediately at the beginning of the semester, and often they have not signed any official paperwork. Up to this point, the university got around the issue by backdating employment contracts. However, this is poses difficultly for the electoral roll. HR can’t include anyone on the roll that they have no knowledge of.

Whether the election would have produced a different result was never really at issue. In principle, a successful election challenge does not require proof that a mistake on the voter roll would have influenced the outcome of the election. Instead, it’s sufficient to declare that the mistake, when viewed objectively (whatever that may actually mean), was potentially serious enough to influence the outcome.

As disappointing as the Court’s decision may be, it has presented us with a new opportunity. In the past year and a half, we have been able to prove that through hard work we have been able to restore confidence in the Betriebsrat as an institution. As a result, many more of our colleagues are now willing to run for office on the LKU ticket. Our slate of candidates represents a broad cross-section of the academic staff at our university. We represent multiple generations of employees (with birth dates from 1959 to 2000), almost all research and teaching career pathways, all 6 faculties and 20 different departments. The fact that the two experienced Betriebsrat members, Nikolaus Bresgen and Andreas Paschon, are now campaigning with us instead of against us also speaks for itself.

We want to continue working for you. To do that, we need your vote. Our youngest candidate put it best:

In times of internal unrest, we need a Betriebsrat that employees can trust!