Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
The election for the German Parliament is just in the books, but the next election is already coming up: The 2022 works council election. Next year, regular works council elections will be held between March 1 and May 31. The preparations for the election and the election campaign have already begun, so employers need to familiarize themselves with the requirements of the election in good time.
Why is the employer interested in an orderly and effective works council election?
The election of the works council is initially the responsibility of the employees and is carried out in their interest. However, the employer bears the costs of the election and has to provide a lot of information in the run-up to the election. Therefore, faulty elections burden employers twice if the election has to be repeated. In addition, the employer regularly has an interest in clear and stable conditions in the operation (work unit) and in the cooperation with the works council.
Recent changes in electoral regulations
The German Parliament has currently eased the conditions for the election of works councils through numerous changes in order to further promote and facilitate them. For example, the voting age has been lowered from 18 to 16, the possibility of a faster election procedure has been extended in smaller companies with up to 200 employees, the statutory special protection against dismissal has been extended for employees involved in the establishment of works councils, and the ability to contest elections has been restricted. In the future, the election committee conducting the election will be able to communicate via video and telephone conference and perform its tasks virtually and digitally if the activity does not necessarily have to be carried out in person (e.g., the counting of votes).
Procedure of the election
The election follows very precise legal requirements. In a nutshell, the so-called election committee (Wahlvorstand) is first appointed, which carries out the election process. The election committee publishes the so-called election notice (Wahlausschreiben), which contains detailed information for the employees about the election. The employer must provide the election committee with a list of all employees entitled to vote (Wählerliste) who can propose candidates for the works council. These candidates are now up for election. After the votes have been cast, the votes are counted and the results announced.
Depending on the size of the company, different election procedures are used, which take different lengths of time until the election results are available. The size of the company also determines whether employees vote for individuals or for lists in which several candidates stand together.
What happens in case of mistakes during the election process?
Errors can occur at all stages of the election process. It is therefore essential that the employer carefully monitors the election process because errors in the election or in the election procedure can lead to the contestability of the election, and in particularly serious cases even to its nullity. The consequence of both a valid challenge and a void election is that the election must be repeated, always at the employer's expense. In addition, this leads to considerable legal uncertainty and de facto inability of the operation to perform work, as no effective agreements can be reached.
At least three persons entitled to vote, a trade union represented in the operation, and/or the employer, are entitled to contest the election. Contesting the election is only possible within two weeks after the announcement of the election result. In exceptional cases, it is also possible to stop a defective election by means of an interim injunction.
Typical errors potentially leading to contested elections are, for example, an incorrect assessment of what constitutes an "operation" (Betrieb) in the case of several locations, several operations at one location, or individual parts of an operation or in connection with several participating companies that form a so-called joint operation (Gemeinschaftsbetrieb). Equally prone to error is the question of who may vote or be elected. Here, uncertainties may arise, for example, in relation to temporary workers, freelancers, employees on long-term sick leave or even employees on parental leave. Here, it may make sense for employers to offer the election committee a legal review of the employee list.
Is the employer allowed to comment or make recommendations as part of the election?
In principle, the employer has to remain neutral. After all, it is an election of the employees. Under no circumstances may the employer obstruct or influence the election; this even constitutes a punishable offense. An employer may make recommendations and suggestions for certain candidates, but employers should exercise the utmost care here because of the risks involved. In case of doubt, employers are advised to hold back completely with statements or recommendations.
What applies if there is no works council in place yet?
The lack of a works council can happen at any time. This means that elections can be held not only in the coming spring. The only prerequisite for the first election is that, as a rule, at least five employees (at least 16 years old) employed by the company be entitled to vote, three of whom are eligible to be elected (at least 18 years old). Employers without a works council are therefore not safe from the possibility that no works council will be formed before or after next year's election. This possibility exists at any time.
Are there other forms of employee representation?
Within the last decade, the representation of employees by so-called alternative employee representations has increased, especially in young and dynamic companies whose employees do not see the legal regulations in line with their own values. From the employer's point of view, these representations, which do not fall under the strict legal regulations, can have remarkable advantages, especially less strict and far-reaching co-determination rights.
However, the existence of an alternative employee representation does not preclude the later establishment of a "real" works council. The employer cannot demand an alternative employee representation from the employees but can objectively discuss its advantages and disadvantages with the employees if, for example, a works council is to be established for the first time. The employer must be very careful not to overstep the bounds of inadmissible and punishable election interference or election influence. Here, too, employers must act with extreme caution.