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Groundhog Day with works council elections

2018 is not solely the year of the next World Cup soccer tournament but also the year in which works council elections will take place throughout the country. Works council members hold their office for four years and, as scheduled, in spring 2018 new works council members will be elected. Besides implying a lot of work for the election committee, this is a chance for the companies to prepare themselves for new representation and also to act upon any errors that could easily occur during the election process.

Starting the actual process

The establishment of the works council is initiated entirely by the employees. Consequently, it is up to the employees whether to start the implementation of a works council or not. Since there is no legal obligation to do so, there is no sanction if no works council is elected or the employees do not manage to establish a works council. If a works council already exists, the former committee of members has to initiate the election process. In the event that no former works council exists, either three associates or a trade union represented within the estab-lishment may call for a works meeting in order to establish an election committee. This procedure gives a union some power with regard to the establishment of a works council. However, it is necessary that the union is represented within the establishment. That means the union must either present one employee as a member of the union, for instance, by showing their membership card or presenting a document certified by a notary stating that one member of the union is an employee of the establishment. There is, however, no quorum that needs to be met for a valid establishment.

Initiating a works meeting

All employees of the establishment are invited to a works meeting. Such a works meeting is supposed to be held during working hours, in order to give all employees the possibility of participating. If however, due to rotating shift work, some employees have time off while the works meeting takes place, they are entitled to claim remuneration for their time, in the event that they attend the meeting. Firstly, an election committee is established. Said committee is responsible for the election process. After a chairman of the election committee is deter-mined, the election process starts immediately. Depending on the size of the operation, the works council candidates are either all included in one candidate list or only individual suggestions for works council members are made, which are the foundation for the subsequent ballot.

Number of works council members

If 5 to 20 employees are entitled to vote, the works council committee itself consists of just one person. In establishments with 21 to 50 employees with voting rights, three members for the board will be elected. The scale continues in proportion to the number of employees up until 9,000 employees, in which case a works council with 35 employees needs to be elected. The detailed numbers are as follows:

No. of Employees No. of Members elected
5-20 1
21-50 3
51-100 5
101-200 7
201-400 9
401-700 11
701-1,000 13
1,001-1,500 15
1,501-2,000 17
2,001-2,500 19
2,501-3,000 21
3,001-3,500 23
3,501-4,000 25
4,001-4,500 27
4,501-5,000 29
5,001-6,000 31
6,001-7,000 33
7,001-9,000 35

Beyond that number of employees, the members of the works council are increased for every additional fraction of 3,000 employees. In accordance with case law, contracted workers or leased employees should now be included in the calculations. In addition, leased employees are also eligible to vote if they carry out work within the organization for more than three months.

Candidates who were not elected as members of the board may become alternate (substitute) members. If members of the works council are indisposed, the alternate member will temporarily take over the seat for that time. If a works council member leaves the company, the alternate member takes over the position permanently.

Choosing a type of election

It is the election committee's duty to initiate and proceed with the works council election. All steps are basically dictated by law. A mistake in any one of those steps could lead to the challenge or the invalidity of the whole election process, including the works council voted upon, which — under some circumstances — will then need to be voted on again. The election committee firstly needs to decide upon the kind of election process to be selected; in organizations that regularly employ five to 50 employees, the simplified election process is chosen. For operations regularly employing 51 to 100 eligible employees, the election committee can, upon agreement of the employer, also proceed with the simplified election process; for more than 100 employees, the normal election process needs to take place. Both procedures differ mainly — as the name already states — in the rules that need to be obeyed during the election procedures. The main difference and key issue, besides deadlines — which are shorter for the simplified procedure — is whether a majority voting system or a proportional representation system is applicable. While in the simplified election process only single employees run against each other, within the normal procedure, different lists with potential candidates are submitted and each voting employee can give his/her voice to one of the lists. If, however, only one list is submitted, the simplified procedure takes place and all candidates run against each other.

Influence of the company

The employer is obliged to not hinder the establishment of a works council and also to bear all costs of the election. According to section 119 of the Works Constitution Act, the employer might face a fine or imprisonment (not exceeding one year), if it interferes in any way with the election process. However, there are ways of actually being actively involved within the works council election that are not considered to be interfering. These options include, but are not limited to, challenging the election, in the event that mistakes took place in the election procedures.

During the election process the employer can apply at a labour court for a preliminary injunction, if the employer is under the impression that the rules and regulations are not being obeyed. However, case law only considers that as an option if the election is likely to be invalid. An election is considered to be invalid if general election principles are breached to such an extent that the election does not appear to be held in accordance with the statutory requirements. Therefore, the election must appear to be invalid at first sight.

The employer can also challenge the election after it has taken place in the event of invalidity as well as a breach (improper composition of the election committee, failure to give notice of the election, breach of election secrecy, etc.). The works council remains in place for the time until the lawsuit is over. The works council can also conclude company agreements and proceed in its daily work, even if the court subsequently rules that the election was invalid.

The employer’s subsequent obligations

Once the works council is in office, the works council members have special protection against termination. The works council members are also entitled to be released from their work in order to carry out works council duties, and to attend training sessions in which knowledge deemed necessary to carry out works council duties is imparted. In the end, all information obligations as well as co-determination rights need to be observed by the employer.

If you have any questions regarding this topic, please feel free to contact
Dr Kathrin Bürger

(LL.M., Lawyer).

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Kathrin_Bürger_Experte_BEITEN_BURKHARDT

Dr. Kathrin Bürger

Rechtsanwältin, Fachanwältin für Arbeitsrecht, LL.M.

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Dr. Kathrin Bürger T   +49 89 35065-1124 E   Kathrin.Buerger@bblaw.com