Works Council: Current elections and recent changes in German law

While in some regards there has been an attempt to adapt the law to new needs - not least due to digital work that has become necessary in the past two years - this has not been implemented comprehensively and thus, is still criticized by numerous works council members.

The election process

Depending on whether a works council is already in place or not, and the number of employees eligible to vote who work in the relevant business establishment, German law provides for different election procedures with different requirements and timelines to be considered. As soon as an Election Committee (Wahlvorstand) is in place, preparation of the Electoral List (Wählerliste) and publishing the Election Notices (Wahlausschreiben), that officially initiated the election, are key to ensure a compliant election process until the election day and final determination of the election result.

Legal framework of works councils´ elections

The German Act to modernise works councils (Betriebsrätemodernisierungsgesetz) implemented changes with regard to the electoral process and the daily works councils work, which were implemented in June 2021. The aim of these changes was to support the electoral process, for example, extension of the active right to vote (from 18 to 16 years) and the applicability of the – at least so called – simplified electoral procedure (for business establishments with up to 100 – instead of 50 – employees). Further details about the corresponding changes of the new law can be found here. Additional changes of the Electoral Regulations (Wahlordnung) came into force in mid-October 2021, for example, covering more beneficial options to correct the Electoral List as well as proactive sending of Election Notices and election documents to certain groups of employees in the absence of presence at the workplace to enable them to take an active role in the election process. In addition, for the first time, the law explicitly allows digital meetings of election committees.

Failures in the electoral process

Failures in the works council election can lead to contestability (Anfechtbarkeit) and nullity (Nichtigkeit). The hurdles to justify nullity are very high and may only be reached in exceptional cases in the event of gross and obvious violations of essential rules on the election process. These must be considered as so serious that there is not even the appearance of a lawful election (e.g. if no election committee or no Electoral List is provided for). If nullity of the election is given, the works council is to be considered as if it has never been in place.

The situation is different when contesting the election, which can be done within two weeks of the announcement of the final election result only, either by the employer, three employees or a trade union represented in the company. Pursuant to the new changes in German law, contestability of the works council election for the reason of incorrectness of the Electoral List is now explicitly excluded for employees unless an objection to the Electoral List has been duly raised beforehand, and for employers, even if the inaccuracy is based on the information they provided. Thus, it is even more important from an employer's perspective to ensure proper submission of information, requested by the works council to prepare the Electoral List.

Depending on whether the failure in question can only be remedied by repeating the election or by correcting the election result, either the election or the determination of the election result is invalid and has to be repeated/corrected.

Despite this, there is only limited scope for intervening in ongoing election procedures by means of a temporary injunction (einstweilige Verfügung). Terminating the election is only possible in the case of a probable nullity.

Regardless of the outcome, contesting the election – in any way - is associated with considerable financial burdens for the employer, as it has to bear corresponding costs.

Special protection against dismissal for employees due to the election

Taking an active role in the election process in linked to special protection rights. Employees enjoy special protection against dismissal, not only if they are finally elected as works council members, but also employees invited to a works meeting for the election of an election committee, as well as their later members; candidates during the election process, as well as substitutes if they move up and carry out works councils' work. Due to the recent changes in law, a special protection against dismissal for election initiators has been extended. Now, the first six - instead of previously three - of the employees, inviting to the election, are covered. In future, even preparatory acts for the election can lead to special protection rights if the employee concerned has had their intention to establish a works council publicly certified. In this case, ordinary dismissals based on personal or behavioural reasons are excluded for a period of up to three months.

Outlook for (digital) works councils´ work

Once the Constituent Meeting (konstituierende Sitzung) is complete, the newly elected works council is able to act and make comprehensive rights to information, consultation, participation and co-determination, where the framework is provided for within the German Works Constitution Act (Betriebsverfassungsgesetz). Although recent changes in law mean that digital works council meetings shall be allowed in exceptional circumstances, the option for digital works council meetings (Betriebsversammlungen) and digital conciliation committee meetings (Einigungsstellensitzungen), that were in force during the COVID-19 pandemic (which expired on 19 March 2022), were neither extended nor included in the recently changed law. Thus, in future, works meetings will have to be held in person again. This also applies to conciliation committee meetings, at least to the extent that a legally effective resolution is to be passed there.