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The works council election 2022 as a challenge for employers – general overview and innovations (Part 1)

04 January 2022

From 1 March 2022 to 31 May 2022, the works council elections will take place. Amongst others employers bear the costs of the election and do have certain cooperation obligations. Hence, companies urgently need to deal with this topic in detail.

Read this article in German >

Our series of articles "The works council election 2022 as a challenge for employers" consists of five parts and deals with all questions relevant for employers. 

In the first part, we give you a general overview of the works council election and the innovations in the election year 2022.

We will then publish further articles on the following topics in the coming weeks:

  • Duties of the employer in the execution and organisation of the election
  • Special challenges in times of pandemic
  • Typical mistakes in works council elections and their consequences
  • First steps after the election

I.    Overview:

When? 

The regular works council elections take place every 4 years and the next time from 01 March 2022 to 31 May 2022.

Where? 

The works council election is basically a face-to-face election in the operational unit; a postal vote is only provided for in certain exceptional cases (e.g. absence on holiday; parental leave, maternity leave; suspended employment, permanent home office, etc.). Online elections are not possible with legal certainty under the current legal situation, despite the wishes of many companies.

Who? 

All employees of the operational unit who have reached the age of 16 on the day of the election are actively entitled to vote. This also includes apprentices, part-time workers, mini-jobbers and working students. Temporary agency workers are also eligible to vote from the beginning of their employment if they are expected to be employed in the operational unit for more than 3 months. Dismissed employees are entitled to vote until the end of the notice period or, in the case of pending unfair dismissal proceedings, until the end of the proceedings. Persons employed on the basis of a service contract or a contract for work and executive employees are not actively entitled to vote. 

All employees who have reached the age of 18 and have been employed in the business unit for 6 months are eligible to stand for election (i.e. can be elected as works council members). Employees who have been dismissed are eligible for election even after the expiry of the notice period if an action for unfair dismissal has been filed before the labour court. However, the office cannot be exercised until a decision is made by the labour court. Temporary workers, on the other hand, are not eligible for election.

How does the voting take place? 

In operational units with 5 to 100 employees, elections are held using the simplified election procedure (voting for a person). The use of the simplified election procedure can be voluntarily agreed between the election committee and the employer in operational units with 101 to 200 employees due to the changes introduced by the Works Council Modernisation Act (see below). Otherwise, meaning in operational units with 201 + employees elections are held according to the normal election procedure (list voting).

Who conducts the election?

The existing works council shall appoint the election committee before the expiry of the term of office of the previous works council (at the latest 10 weeks in the normal election procedure or 4 weeks in simplified election procedure; earlier appointment up to 6 months prior possible) who shall organise and conduct the election.

In operational units where there is not yet a works council, the election committee shall be appointed by the joint works council or, if there is no joint works council, by the group works council. If there is neither a joint works council nor a group works council, the election committee shall be elected at a works meeting. If this does not succeed, because despite invitations no works meeting takes place or it does not elect an election committee, the labour court shall appoint it at the request of at least 3 employees entitled to vote or of a trade union represented in the enterprise.

In principle, the election committee consists of three members and substitute members, all of whom must be employees entitled to vote. This is the only requirement. Non-works council members may also be active on the election committee.

What is the rough process of the election?

The election process is as follows:

  1. Appointment of the election committee;
  2. Preparation and posting of election notices (deadline: no later than 6 weeks before the first day of voting in the normal election procedure; no minimum period in the simplified election procedure);
  3. Submission of proposal lists (deadline: 2 weeks since issuing of the election notice in the normal election procedure respectively 1 week in the simplified election procedure;
  4. Announcement of the valid proposal lists (posting no later than 1 week prior to the first day of voting) and mailing of absentee ballots (note last opportunity to check the electoral role on the day before the voting begins)
  5. Election Day;
  6. Counting of votes and notification of elected members;
  7. Announcement of election results;
  8. Constituent meeting of the new works council (at the same time end of the term of office of the old works council);
  9. Conclusion of the election procedure

II.    Innovations in the election year 2022:

Innovations in the election year 2022 result from the Works Council Modernisation Act (Betriebsrätemodernisierungsgesetz) and the amended election regulations (Wahlordnung).

1.    Works Council Modernisation Act (in force since 18 June 2021):

The most important changes brought about by the Works Council Modernisation Act for the works council elections 2022 are as follows:

Extension of active voting rights (section 7 ff. Works Constitution Act):

The minimum age for active voting was lowered from 18 years to 16 years.

Reduction of the number of required supporting signatures (section 14 para 4 Works Constitution Act):

The required number of so-called support signatures (i.e. signatures obtained in advance to support an election candidate) was reduced as follows:

  • Up to 20 eligible voters: no supporting signatures required;
  • 21 to 100 eligible voters: at least 2 supporting signatures;
  • From 101 eligible voters onwards: at least 5 % of the employees entitled to vote provide supporting signatures, whereby 50 supporting signatures are always sufficient.

Restriction of electoral challenge (section 19 para 3 Works Constitution Act):

A contestation of an election in case of incorrectness of the electoral list is excluded without a prior, proper objection against the electoral list (unless the contesting eligible voters were prevented from filing an objection). The employer's challenge of a works council election on the grounds of the incorrectness of the electoral list is even completely excluded if the incorrectness is based on the employer's own information.

Simplified Election Procedure (section 14a subsection 5 Works Constitution Act):

The simplified election procedure applies for operational units with up to 100 employees (instead of previously 50 employees) and the use of the simplified election procedure can be voluntarily agreed between the election committee and the employer in operational units with 101 to 200 employees.

Miscellaneous:

There is extended protection against dismissal for election initiators (section 15 para 3a, 3b Act Against Unfair Dismissal). Now the first 6 - instead of previously 3 - of the employees inviting to the election are covered. In operational units  without a works council, preparatory acts can already justify special protection against dismissal if the employee concerned has had his intention to establish a works council publicly certified by a notary. In this case, dismissals for personal reasons and for reasons of conduct are excluded for a period of up to 3 months. Dismissals for operational reasons remain possible.

2.    Amendment of the Electoral Regulations (in force since 15 October 2021):

The most important changes brought about by the electoral regulations are as follows:

Digital meetings of the electoral board via video or telephone conference (section 1 para 4 Electoral Regulations):

The election committee may now also hold non-public meetings and pass resolutions by means of video or telephone conference. It must pass a corresponding resolution in advance. However, face-to-face meetings still have priority and video or telephone conferences are not possible for the subsequent important steps of the election:

  • First electoral assembly in the simplified two-stage electoral procedure (section. 14a para 1 S. 2 Works Constitution Act);
  • Examination of submitted lists of proposals (section 7 para 2 S. 2 Electoral Regulations);
  • Carrying out a lottery procedure (section 10 para 1 Electoral Regulations);
  • Vote counting (section 13 and Sec. 34 para 3 Electoral Regulations);
  • Processing of postal voting documents (section 26 para 1 und section 35 para 3 Electoral Regulations);

Correction and addition to the electoral roll (section 4 para 3 s. 2 Electoral Regulations):

The electoral roll can now be corrected or supplemented on the day of the election until the close of voting, instead of only until the day before voting begins, as was previously the case.

No more ballot envelopes for elections:

With the exception of subsequent voting (section 35 Electoral Regulations) as well as voting by written procedure (section 25 Electoral Regulations), ballot envelopes are no longer required, which leads to a considerable administrative simplification.

Processing of votes cast in writing (section 13 and 26 Electoral Regulations):

In future, votes cast in writing are to be processed only after the votes have been cast at the beginning of the public session in which the counting of votes takes place.

Sending of postal voting documents without request (section 24 Electoral Regulations):

Employees who are not present in the company for a longer period of time (e.g. employees on parental leave, maternity leave, in field service, etc.) shall be sent the absentee ballot papers without a separate request if this is known to the election committee. The employer shall provide the election committee with the necessary information.

Determination of a time for declarations (section 41 Electoral Regulations):

The electoral board may now set a time for declarations subject to a time limit, such as the submission of election proposals or the filing of objections against the correctness of the electoral list. However, this time may not be before the end of the working hours of the majority of voters on that day.

If you have any questions or require specific advice please do not hesitate to get in touch.

Further Reading