The 2022 works council elections are just around the corner. The preparations are starting now. The German Works Council Modernisation Act 2021 (Betriebsrätemodernisierungsgesetz 2021) and the new Election Rules (Wahlordnung) have changed the election procedure. Employers should be roughly familiar with the procedure.
The electoral board is responsible for the precise organisation of the election. It normally consists of three employees (who are entitled to vote). This means that the members are not election experts. They need help, from the employer, a lawyer – or a trade union.
If a works council already exists, it will appoint the electoral board. If it fails to do so, the labour court (upon application) or the general works council (Gesamtbetriebsrat) may appoint the electoral board. In groups of companies, the electoral board may also be appointed by the group works council if a general works council does not exist. An electoral board may only be appointed by the employees themselves in businesses that do not have a works council; in this case, the appointment must take place at an electoral meeting.
The body making the appointment may, exceptionally, appoint more than three members to the electoral board if this is necessary to properly carry out the election. Only odd numbers of members are permitted. Substitute members may also be appointed. The trade unions represented in the business may each appoint one person who belongs to the business to the electoral board, but only as a non-voting member. To the extent necessary, the electoral board itself may designate assistants to provide support during the election.
The electoral board will carry out its work at meetings and decide by resolution. In acknowledgement of digitalisation, meetings by video or telephone or hybrid meetings are now also permitted. However, certain tasks (examining the election proposals, drawing lots for the purposes of numbering several election proposals) may only be dealt with at meetings held in person.
The election will be officially initiated by posting an election notice. Before the electoral board can do this, it must carry out some initial examinations:
The electoral board will determine the election day or, in larger businesses, the election days. In doing so, it should take into account the large number of tasks that need to be attended to prior to the election day. The preparations for the election will take at least ten to twelve weeks, according to a rough estimate.
The electoral board will create the electoral roll from a list made available by the employer. This electoral roll is extremely important because only employees included in the electoral roll will be entitled to vote on the election day. The employer should compile all employee data needed for this purpose. The electoral roll must state each employee’s surname, given name and date of birth. Temporary workers, minors entitled to vote and any other employees entitled to vote who are not eligible must be marked as such. The electoral roll must be divided by sex into separate lists.
By compiling the electoral roll, the electoral board finally determines whom it considers an employee (who is entitled to vote). Therefore, the employer should verify at an early stage that it agrees with the electoral board’s assessment. If the employer does not agree, it should timely ask for a correction.
The preparation of the so-called election notice will involve a lot of work for the electoral board. This document contains the key data of the upcoming works council election, as determined by the electoral board in accordance with the requirements stipulated in the German Works Constitution Act and the Election Rules. For “regular” elections in larger businesses, the election notice must include 13 mandatory items (Section 3 (2) Election Rules German Works Constitution Act (Wahlordnung BetrVG – “WOBetrVG”)); the electoral board may add further details on a voluntary basis. In the case of “simplified” elections, the number of the mandatory items of information rises (!) to 15 (Section 31 (2) Election Rules German Works Constitution Act).
Upon completion of the documents, the electoral board must put up the electoral roll and the election notice in the business. In addition, it may also publish the documents electronically. Furthermore, the electoral board must send the election notice (not the electoral roll) electronically to any employees entitled to vote who will not be in the business on the election day, as far as can be foreseen. The hurdles for an announcement made only electronically are high, and it is unlikely that many businesses will be able to clear them.
The publication of the election notice will mark the official start of the works council election. More on this in Part II.