15.10.2021

Works council elections 2022: The election procedure - Part I: Preparations by the electoral board

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 as master of 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.

Initial examinations by the electoral board before initiating the election

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:

  • In what unit should the election take place, i.e. how should the business be delimited? This is often easy to assess. The assessment becomes more difficult when there are several smaller units that are connected organisationally, for example, smaller branches. The assessment of joint businesses (Gemeinschaftsbetriebe) of several undertakings can also be difficult.
  • Who is to be considered an employee of the business? Temporary workers, for example, are also employees. Disputes often arise with regard to freelancers or third parties working for the business on a long-term basis, for example, in IT. Genuine executive employees (leitende Angestellte) are not to be taken into account.
  • Who is entitled to vote, who is eligible? Unlike in the past, all employees aged 16 or older are now entitled to vote. Temporary workers may only vote, however, if they are deployed in the business for longer than three month; this period must, of course, include the election day. Younger employees are only entitled to vote. Only persons who are of age and, in addition, have belonged to the business, or at least to the undertaking or the group of companies, for a minimum of six months can be elected to the works council.
  • How many employees are entitled to vote in the business? This number is particularly important for the size of the works council to be elected and the election procedure: in businesses with up to 100 employees entitled to vote, a “simplified” election procedure is applied; in business with 101 to 200 employees entitled to vote, the electoral board and the employer can voluntarily agree to apply the “simplified” election procedure instead of the regular one. For employers, however, such an agreement is rarely advisable: the “simplified” election is first and foremost a much faster one, not a simpler one. As such, it is much more prone to mistakes.
  • How many employees of the different sexes are there? This is particularly important for the composition of the works council, given that there are minimum quotas for the number of works council members from among the sex that is in the minority. To date, “women” and “men” are the only sexes known in case law and in legal literature. People of other sexes will probably seldom play a role in practice. This is because there will usually be too small a number of them in the businesses to allow them to secure even a single seat on the works council.
Further preparations: election day, documents

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.

Author
Dietmar Heise

Dietmar Heise
Partner
Stuttgart
dietmar.heise@luther-lawfirm.com
+49 711 9338 12894