Germany: New rules for works council elections in 2022

Between 1 March and 31 May 2022, new works councils will be elected in a large number of companies in Germany. In addition to the Works Council Modernisation Act (Betriebsrätemodernisierungsgesetz), which came into force last year (you can read more about this here), changes in the German Election Regulations (Wahlordnung - WO) will lead to significant changes in the upcoming works council elections.

The works council election is protected by the statutory prohibition of obstruction and influence (Sec. 20 (1) and (2) Works Constitution Act - BetrVG). Since obstructing works council elections is a criminal offense (Sec. 119 (1) no. 1 BetrVG), employers should be aware of the following key changes:

Simplified election procedure

Two election procedures are available for works council elections - the so-called simplified election procedure and the normal election procedure. In the simplified election procedure, shorter deadlines apply. The election is based on the principles of majority voting instead of proportional representation. The simplified election procedure is now mandatory in companies with between five and 100 employees entitled to vote. In small companies with up to 200 employees entitled to vote instead of the previous 100, the election committee can agree with the employer on the use of the simplified election procedure. If more than 200 employees with voting rights are employed, the normal election procedure must be applied.

Election Committee Meeting

The election committee can now hold its meetings by video or telephone conference. To be allowed to do so, the election committee must pass a resolution to that effect. The resolution may establish conditions for the use of video and telephone conferencing.

Nevertheless, the WO assumes that face-to-face meetings should remain the rule. The following meetings must therefore continue to be held in face-to-face sessions:

• Examination of submitted candidates or lists of candidates,
• verification of proposal lists as a result of corrections made,
• the actual counting of votes and
• processing of postal vote and the implementation of the lottery procedure.

Electoral roll

The electoral roll list can be corrected or supplemented up to the end of voting. Previously, the electoral roll list could only be changed up to the day before voting began.

Election proposals

Anyone wishing to stand for election to the works council requires the support of so-called "supporting signatures". The required number of supporting signatures has now been reduced, so that in companies with up to 20 employees no minimum number is required and in companies with up to 100 employees only two supporting signatures are required. In larger companies, everything remains the same - supporting signatures amounting to 5% of the employees entitled to vote are required. Irrespective of this, the signature of 50 employees entitled to vote will continue to be sufficient in all cases.

Election notice

In addition to the reference to the deadline for lodging an objection against the correctness of the electoral roll (two weeks), the election notice must in future also contain the express reference that a contestation of the election is excluded if the reason for contestation is based on an error in the electoral roll and no objection was duly lodged against this (Sec. 19 (3) BetrVG). A challenge by the employer is excluded if the employer wishes to rely on the fact that the electoral roll is invalid, although the incorrectness is based on the information provided by the employer (Sec. 19 (3) BetrVG).

The new WO also takes account of the modern world of work by requiring that the election notice in particular be sent by post or electronically to eligible voters who will not be present in the company from the time the election notice is issued until the time of the election (Sec. 3 (4) sentence 4 WO). The necessary information, such as the address, is to be provided by the employer.

Reduction of the voting age

For the first time, all employees of the company who have reached the age of 16 are eligible to vote in the works council elections (Sec. 7 BetrVG).

Voting and counting

The election committee can now determine a specific time for the end of the deadline, in deviation from the deadline regulations in the German Civil Code (BGB), so that the deadline can also end before midnight (Sec. 41 (2) WO). However, the deadline may not end before the end of the working hours of the majority of those entitled to vote.

When voting on the premises, it is no longer necessary to use an envelope; instead, the ballot paper can be folded and dropped directly into the ballot box (Sec. 11, 20 and 34 WO). Henceforth, the absentee ballot envelopes are to be opened and checked at the "beginning of the public session" for counting the votes. Valid ballot papers are to be placed in the ballot box sealed by then.