In the previous article, we have described the steps involved in a works council election up until the election notice is issued (= displayed). In this article we explain what else employers should bear in mind. The issuance of the election notice marks the official initiation of the works council election, according to the provisions of the election rules. Many steps follow. Just like the description in the previous article, the following comments apply to larger businesses that generally employ more than 100 employees entitled to vote.
The issuance of the election notice is followed by a two-week period during which employees and any trade unions represented in the business may file proposals of candidates for election to the works council. Such lists of proposals should, but are not required to, contain twice the number of candidates as there are members to be elected to the works council. It is important to note that each list of proposals must be supported by the signatures of at least 1/20 of the employees entitled to vote in the business. Fifty signatures are enough in any case – that is, in businesses with at least 1,000 employees entitled to vote.
The electoral board must review all lists of proposals filed. If they do not give rise to objections, the electoral board must make them known in the business. In doing so, it must remain neutral, which means that it may not prefer any list.
Together with the election notice, the electoral board had to publish the electoral roll. This electoral roll is extremely important for the election, as only employees whose names are included in the roll can stand as candidates for election to the works council in a list of proposals. The same applies to the right to vote: only employees whose names are included in the electoral roll on the election day can and may cast their votes on that day.
This is why all employees and also the employer should verify that the electoral roll is correct. For employees, the time allowed to do so is again limited: employees can only file objections to the accuracy of the electoral roll with the electoral board within two weeks of the issuance of the election notice. Thereafter, until voting is concluded, the electoral board may only make corrections to the election notice in the case of objections filed in due time, upon employees joining or leaving the company, or if there are obvious mistakes. The employer or trade unions cannot raise an objection.
The right to contest the election due to mistakes in the electoral roll has also been restricted: employees can now only contest the election on the grounds of mistakes in the electoral roll if an employee (any employee) previously filed an objection in due time or if the contesting employees were prevented from doing so. The employer cannot contest the election if the inaccuracy is due to information that was provided by the employer.
The important thing for the employer to do is, therefore, to check the electoral roll and also the preparatory work carried out by the employer within the two-week period. If the employer discovers mistakes in its own lists that have been provided to the electoral board and wishes to keep the option open to contest the election, the employer should ask the electoral board for corrections timely enough for the electoral board to be able to correct the mistake within the two-week period.
In preparation for the actual election, the electoral board must prepare ballot papers. If more than one valid list of proposals has been received during the two-week period, the names of the lists are to be set out on the ballot paper in the order of their previously assigned ordinal number. Voters shall have only one vote, which they may give to a list of their choice (so-called proportional representation).
If only one valid list of proposals has been filed within the set period, so-called relative majority voting takes place: all candidates included in this list are put forward for election individually and by name on the ballot paper. Each voter may cast as many votes at his or her discretion as there are works council members to be elected. In some businesses, there is a deliberate practice of putting all candidates on one list with a view to achieving relative majority voting. This is allegedly supposed to give the election a more democratic touch. Please be cautioned against this practice: if only one candidate who is put off by this practice finds enough supporters and files his or her own election proposal at the last possible moment, the entire well-intentioned plan fails. Such cases are not uncommon.
If, on the other hand, not a single valid list of proposals has been filed within the set period, the electoral board must fix an additional period of exactly one week, which it may neither shorten nor extend. If again no list is filed, the electoral board must discontinue the election.
The act of voting itself is similar to public elections: at the polling station, the voters must be checked off of an (updated) electoral roll. It must be ensured that they can cast their votes secretly. The folded ballot papers must be placed into a ballot box that cannot be tampered with and must be kept in that box until voting is concluded. By the way, the requirement of envelopes for the ballot papers has just been abolished. Voters must now fold their ballot papers in such a way that their vote cannot be seen. May the employees be more adept than Armin Laschet, one of the candidates for the post of Chancellor in the 2021 German federal election, who folded his ballot paper incorrectly, thus revealing the marks he had made.
In the context of works council elections, the postal vote is simply referred to as “written vote”. Unlike in the recent federal election, for example, a postal vote in works council elections is only permitted in exceptional cases. Only employees entitled to vote who are absent from the business at the time of the election and, therefore, cannot cast their vote personally may demand to vote by postal vote. If the electoral board is aware of the absence of an employee entitled to vote, it must send that employee the necessary documents, even without an express request from the latter.
After voting is concluded, the votes are counted. In the event of relative majority voting, that is, if only one list of proposals has been filed, the candidates elected can easily be determined, at least within the first step: the only criterion to be considered is the number of votes received.
In the event of proportional representation, the more complicated D’Hondt method must be applied. Under the D’Hondt method, each list’s votes are repeatedly divided by whole numbers, starting with 1 (that is, first by 1, then by 2, then 3, etc.). The seats are then allocated to the quotients thus obtained, starting with the highest one (for a more detailed description, see Wikipedia, for example).
Things may become more complicated in both cases if the sex that is in the minority does not receive the share of seats on the works council that corresponds to its percentage of the workforce. In this case, the works council members from among the majority sex who have been determined using the aforesaid method are “deleted”, starting with the member with the smallest number of votes or the smallest highest quotient, and are replaced by the next candidate of the minority sex. In extreme cases, this may result in a candidate from one list being replaced by a representative of the minority sex from another list, which may even lead to a change in the majority situation on the works council.
After the elected candidates have been determined and have accepted their election, the election result must be announced in the business and be made known to the employer and any trade unions represented in the business. The last act to be performed by the electoral board is to convene and chair the constituent meeting of the newly elected works council until a works council member has been designated who will conduct the election of the chairperson.
The rules described in this article apply only to larger businesses. Smaller businesses must carry out a so-called simplified election.