Works council election

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This article deals with the election of the works council under German law. The works council represents the interests of the employees of a company ( workforce ) vis-à-vis the employer .

introduction

The right to elect a works council is regulated in Sections 1 and 7 to 20 of the Works Constitution Act (BetrVG). The numerous details of the right to vote are regulated in the election regulations for the Works Constitution Act (WO) . Works constitution law applies exclusively to the private sector. In the area of public service are staff councils elected . The distinction is formally made according to the legal form of the employer and not according to the task that is performed. If the employer is a natural person or a company under private law, works constitution law applies.

Examples:

In religious communities and their charitable and educational institutions, regardless of their legal form, neither staff nor works councils can be elected ( Section 118 (2) BetrVG, Section 112 Federal Personnel Representation Act - BPersVG) This comprehensive exception applies to all religious communities and not just the Christian churches. However, the two large Christian churches, the Evangelical Church in Germany (EKD) and the Roman Catholic Church in Germany have enacted church laws according to which employee representatives can be elected in their churches and institutions who enjoy a similar position as works or staff councils; More on this in the article Labor law of the churches .

Requirement for the establishment of a works council

A works council can be elected in any company with 5 or more “employees with permanent voting rights” ( Section 1 BetrVG). Three of the employees must be eligible for election. The formulation in § 1 that with the mentioned minimum number of employees entitled to vote “Works councils. . . to be elected ”does not mean that they are actually elected in all of these establishments; there is only the possibility to do so. All employees who have reached the age of 18 are entitled to vote ( Section 7 BetrVG). Employees are "permanently" employed within the meaning of the law if they are either hired for an unlimited period or if they are entrusted with tasks that constantly arise in the company. Counting is "by head", so that every part-time employee is also counted as a full-time employee (unlike, for example, in Section 23 KSchG , where part-time employees are only counted with a fraction of a full-time employee).

The size of the works council to be elected depends on the size of the company. In companies with up to 20 employees entitled to vote, the works council consists of one person, in the case of up to 50 employees entitled to vote it consists of 3 people. With up to 100 employees it consists of 5, with up to 200 employees of 7 and from 201 employees of 9 people. The details for even larger establishments can be found in Section 9 BetrVG.

If statutory provisions on the election of the works council relate to a certain number or a certain proportion of employees in the company, since April 1, 2017, temporary workers must be taken into account if they have been employed in the company for more than six months ( Section 14 (2) sentences 4 to 6 AÜG ).

Suffrage

Right to vote

According to § 7 BetrVG, all employees of the company who have reached the age of 18 have the active right to vote, i.e. the right to participate in the voting decision by casting their vote .

Among the workers are to § 5 para. 1 WCA also

  • the trainees (“those employed for their vocational training”) and
  • the home workers who mainly work for the company.

The trainees are therefore counted among the employees entitled to vote when they have reached the age of 18. If this requirement is not met, you only have the right to vote for youth and trainee representation (JAV) according to §§ 60 ff. BetrVG. Those employed for their vocational training who are older than 18 years have both the right to vote for the works council and the right to vote for the JAV. If you are older than 25 years, you lose the right to vote for JAV permanently (§ § 60 f. BetrVG).

The executive employees within the meaning of Section 5 (3) BetrVG do not belong to the employees in the sense of the works constitution . Section 5 (2) of the BetrVG excludes other persons from voting who, without this clarification in the law, might still have to be regarded as employees. For executive employees, however, the law on speaker committees for executive employees (Speaker Committee Act - SprAuG) applies.

The right to vote is only available to employees and not to other persons who work in a similar position in the company. In particular, it is not available to freelancers - unless they are integrated into the operational process in personal dependency.

Only company employees have the right to choose (see wording of Section 7 BetrVG). Employees from other companies have no right to vote; this also applies if they are integrated into the operational processes like their own employees for a longer period of time. As an exception, these employees have the right to choose if they have been made available “for work”, which is typically the case with temporary workers under the Temporary Employment Act , and then only if they are employed in the company for longer than three months ( Section 7 BetrVG ).

According to Sections 11 and 12 of the Election Regulations (WO), voting is carried out by submitting ballot papers in suitable and designated voting envelopes. The electoral committee has to ensure that the submission happens unobserved.

Postal voting is possible according to § 24 WO if eligible voters are unable to cast their votes in person because they are absent from the company and apply for this postal voting to the electoral board. If the electoral board is aware that, depending on the nature of their employment, those eligible to vote will probably not be present in the company at the time of the election, or if it decides to vote by post for parts of the company and small companies that are spatially far away from the main company, it must provide the voters concerned with the postal voting documents without being asked to transfer.

Passive suffrage

According to § 8 Abs. 1 BetrVG, the right to stand as a candidate, i.e. the right to stand for election to the works council (application, candidacy), is available to all employees with active voting rights as soon as they have been with the company for at least six months.

According to Section 8 (2) BetrVG, this principle does not apply if the entire company has not been in existence for 6 months; then all active voters are also passively entitled to vote at the same time. In addition, periods of service that one has completed in other companies of the same company or in other companies of the same (subordinate) group can be taken into account if they have been acquired without interruption.

Election period, term of office

Works council elections have been held in Germany since 1990 every four years from the beginning of March to the end of May ( Section 13 (1) BetrVG). Accordingly, the works council is also elected for four years (term of office). The last elections took place in 2018, so the next regular election will take place in 2022. - If, however, there is currently no works council in the company, you can elect a works council at any time outside of the regular election period. If the works council is elected outside the regular election period, it has a shortened term of office that only lasts until the next regular election period. (Exception: If the works council is elected up to twelve months before the start of the next regular election period, it has an extended term of office until the next but one regular election period.)

Examples:

  • If a works council is set up in a company previously without a works council in 2011, it has a shortened term of office up to a maximum of May 31, 2014 (i.e. around three years).
  • If, on the other hand, the works council is only elected after March 1, 2013, it has a term of office until the 2018 election period, as there is less than a year between its establishment and the start of the next regular election period (March 1, 2014).

Electoral board

The election is only valid if it is led by an election committee. This is to ensure that the election is carried out impartially and without any particular influence on the part of the employer, a trade union or any other interest group. The electoral board consists of three persons entitled to vote and one of them as chairman. The works council can increase the number of electoral board members if this is necessary for the proper implementation of the election. The electoral board must in any case consist of an odd number of members. A substitute member can be appointed for each member of the electoral board if he is unable to attend. ( Section 16 (1) BetrVG).

Establishment of the electoral board

... by ordering

If there is a works council in the company, the electoral board is appointed by the works council. If there is no works council in the company, the electoral board must usually be elected by the workforce at a works meeting (see below). However, if the company without a works council belongs to a company in which there is a general works council , this can also appoint the electoral board; if there is no general works council, but there is a group works council , this can also appoint the electoral board ( Section 17 (1) BetrVG).

“If the previous works council has not appointed an electoral board eight weeks before the end of its term of office, at least three employees who are entitled to vote or a union represented in the company can apply to the labor court to appoint an electoral board. Suggestions for the composition of the electoral board can be made in the application ( Section 16 (2) BetrVG). "

... by choice

If there is no works council in the company, the electoral board must be elected by the workforce at a works meeting (see above for exceptions).

Three employees of the company who are entitled to vote or a union represented in the company can invite to the works meeting at which the electoral board is to be elected in a company without a works council ( Section 17 (3) BetrVG). This meeting must be invited in such a way that all employees of the company have the chance to take note of the invitation. The electoral board is elected if it can unite the majority of the employees present ( § 29 WO); what is required is the so-called “simple majority” . If this does not take place despite a proper invitation to the works meeting, or if no electoral board is elected, the electoral board will be appointed by the labor court at the request of three employees or a union represented in the company ( Section 17 (4) BetrVG).

Tasks of the electoral board

The electoral board carries out the works council election in accordance with the more detailed provisions of the election regulations (WO) . He must first draw up a list of employees entitled to vote (electoral roll - § 2 WO). In addition, he must display the election notice ( § 3 WO). He then checks the nominations received and uses them to create the voting slip. Finally, he monitors the voting, then publicly counts the votes cast and uses this to determine the elected members of the works council. The election is concluded with the mandatory public announcement of the election result by the election committee. Since the elected works council does not yet have a “head” in the form of a chairperson, the electoral board must also invite the first meeting of the works council and chair it until a chairman has been elected from among the works council ( Section 29 (1) BetrVG ).

In companies with regularly up to 50 employees, the works council is elected in a works meeting (staff meeting); If the company is larger, a works meeting is not required. The election is carried out as a secret ballot, so the voting takes place by throwing a ballot slip filled in without being observed in a ballot box , as is known from political elections to the Bundestag or a Landtag. Postal voting ("written voting" in legal German) is possible in exceptional cases.

Cost of choice

The employer bears the costs of electing the works council ( Section 20 BetrVG). However, the electoral committee may only trigger the necessary costs. Members of the electoral board do not require the approval of the employer if they have to leave their place of work in order to perform their duties. However, you have to de-register and re-register ( Section 20 (3) BetrVG). The full fee with all surcharges must be paid. If overtime would have accrued without the work on the electoral board, they are also to be remunerated, even if this is not regular overtime (BAG, June 29, 1988, AP No. 1 to § 24 BPersVG). Participation in a training event, as required for works council members according to Section 37 (6) of the BetrVG, is part of the electoral committee . (BAG, June 7, 1984, AP No. 10 to Section 20 BetrVG 1972).

Training entitlement

Since even small formal errors can lead to the invalidity of the works council election, the training entitlement standardized in Section 37 (6) BetrVG in conjunction with Section 20 (3) BetrVG extends to all members of the electoral board . The training entitlement also applies to former electoral board members if the time interval between the works council elections makes it necessary to refresh their knowledge. The cost of attending the seminar, as well as the cost of the works council election, must be borne by the employer in accordance with Section 20 (3) BetrVG.

Protection against dismissal

Members of the electoral board

The members of the electoral board enjoy special legal protection against dismissal in accordance with Section 15 (3) KSchG. A termination is only possible if there is an important reason for termination within the meaning of § 626 BGB and if the works council has approved the termination in accordance with § 103 BetrVG. If there is no works council that could agree, the employer must apply to the labor court for approval. If the works council refuses to give its consent, the employer can have the refused consent replaced by the labor court. The labor court must replace the refused consent if there is good cause for termination. This double protection against dismissal begins with the appointment or election of the electoral board and ends with the announcement of the election results. In a “cooling-off phase” thereafter, there is less protection against dismissal for six months; Even now, the employment relationship can only be terminated for important reasons within the meaning of Section 626 of the German Civil Code (BGB), but additional approval by the works council is no longer required.

Candidates

In the same way as the members of the electoral board, applicants for works council elections are protected. Your “double protection” begins with the preparation of the nomination and ends, as with the electoral board, with the announcement of the election results. The then elected members of the works council retain this “double protection” ( Section 15 (1) KSchG). For the remaining applicants, there is still the “simple protection” in the cooling-off phase, which lasts six months, as with the election committee.

"Inviter" in the works without a works council

The three employees who have invited to the works meeting for the election of an electoral board in a company without a works council have enjoyed at least a weakened protection against dismissal since 2001 , which is modeled on that from the "cooling off phase" for the electoral board and the candidates (cf. § 15 para. 3a KSchG).

Other electoral principles

Obstruction of a works council election

Nobody may hinder the election of the works council. In particular, no employee may be restricted in exercising their active and passive voting rights ( Section 20 (1) BetrVG). Deliberate obstruction of the election is a criminal offense according to § 119 BetrVG .

Canvassing

A works council election includes “all actions related to or serving the election”, in particular also election advertising, provided that this does not violate legal or contractual obligations. Electoral advertising is expressly permitted. If individual candidates or even coalitions, regardless of whether these trade union nature or associations of employees of a company, are prevented from making ahead of a council election advertisement for itself, this is a violation of the relevant protection provisions of the Basic Law , in particular the freedom to Art. 9 para. 3 GG in connection with the protection of the freedom of expression according to Art. 5 para. 1 GG as well as violations of the protection of works council elections enshrined in the Works Constitution Act according to § 20 para. 1 BetrVG. In the case of violations of Section 20 of the BetrVG, the criminal offense section Section 119 (1) of the BetrVG must also be taken into account.

Simplified voting procedure for small businesses

In companies with up to 50 employees who are entitled to vote, a simplified election procedure takes place in accordance with Section 14a BetrVG. The simplified procedure can also be used in companies with, as a rule, 51 to 100 employees entitled to vote, if the electoral board and the employer so agree.

In the simplified procedure, the works council is elected at an electoral meeting in a secret and direct vote. In companies without a works council, there is first an election meeting to elect the electoral board (if the electoral board is not appointed by a general or group works council), and one week later there is an election meeting to elect the works council (two-stage process).

In the simplified electoral process, the works council is always elected by person voting ( majority vote ) and not by list election ( proportional representation ).

Election contestation

In the context of an election challenge, you can have a judicial review whether the election was carried out properly. However, contesting the election is only possible within 2 weeks of the announcement of the election result ( Section 19 BetrVG). Within this period, the court has to be informed of the fact that is significant under the works constitution on which the contestability is to be based. If the election challenge is successful, the works council loses its office; the loss of office occurs only with effect for the future; Resolutions and agreements that have been made so far remain effective.

After the 2-week contestation period has expired, the incorrectly elected works council also enjoys all the rights and obligations of a works council; he will be treated in all respects as if the election had been carried out without errors. There is, however, a perhaps rare but significant exception: If fundamental errors are made in the election, the election can also be void (nullity of the works council election). A works council resulting from an invalid election in no way enjoys the rights of a works council. The employer and anyone else can invoke the nullity of the election outside of the contesting period.

Examples:

  • Election of a works council in a church hospital or in a children's village whose sponsor is a member of the Diakonie;
  • Election of a works council for a company in which a works council already exists;
  • An attempt to elect a works council instead of a staff council in an institution run under public law would also be null and void.

Further training offers for the electoral board

Working on the electoral board is a very responsible task that involves a lot of work and which in exceptional cases can also lead to being drawn into conflicts of interest between the employer and the workforce or parts of the workforce without doing anything on your own. If one has been appointed or has been elected to the electoral board and is not familiar with the details of the electoral law, one should therefore definitely continue to train in this area. This can be done either informally through advice from experienced colleagues or through participation in a commercial training event such as that offered by the union education institutions or private institutes. Insofar as participation in an external paid training course is required to carry out the election without errors, the costs incurred are part of the costs of the election ( Section 20 (3) BetrVG) that the employer has to bear or reimburse . The external training courses usually take 1 or 2 days.

Appendix (dates and deadlines)

Carrying out the works council election - schedule (regular election procedure)

time

The regular elections take place every 4 years between March 1st and May 31st ( Section 13 (1) BetrVG).

Appointment of the electoral board

  • no later than ten weeks before the end of his term of office by the works council ( Section 16 (1) BetrVG)
  • if there is no electoral board eight weeks before the works council's term of office expires, appointment by the labor court at the request of at least three eligible voters or a trade union represented in the company ( Section 16 (2) BetrVG)
  • if there is no electoral board eight weeks before the works council's term of office expires, the general works council or, if one does not exist, the group works council can appoint the electoral board ( Section 16 (3) BetrVG)

Allocation procedure for executives

  • At least eight weeks before the first day of voting, the electoral board will be informed about the assignment of senior executives ( Section 18a, Paragraph 1, Sentence 1, BetrVG in conjunction with Section 3, Paragraph 1, Sentence 1, WO)
  • in the event of failure no later than seven weeks before the first day of voting, decision of the agent ( Section 18a (2) BetrVG in conjunction with Section 3 (1) sentence 1 WO)

Determination of the minimum seats for the gender in the minority (§ 5 WO)

Immediately after the assignment of the managerial staff ( § 5 WO)

Adoption of the election notice - initiation of the election

No later than six weeks before the first day of voting ( Section 3 (1) sentence 1 WO) and display of the electoral roll ( Section 2 (4) sentence 1 WO)

Appeals against the electoral roll

No later than two weeks after the announcement of the election has been issued, except when eligible voters join the company or when they leave the company ( § 4 Paragraph 1, 3 WO)

Submission of nominations

At the latest before the expiry of two weeks since the election notice was issued by the electoral board ( Section 6 (1) sentence 2 WO)

Examination of the proposal lists

Immediately, if possible two working days after receipt, immediate notification of complaints ( Section 7 (2) sentence 2 WO)

Elimination of deficiencies in the proposal lists

No later than three working days after receipt of the complaint ( Section 8 (2) WO)

Announcement of the valid proposal lists

At least one week before the start of voting ( Section 10 (2) WO)

Counting of votes, announcement of the result and record of the election

Immediately after the election ( § 13 , § 16 WO)

Further details on the counting of votes and the allocation of seats are described in the election regulations .

Notification of the elected

Immediately in writing ( Section 17 Paragraph 1 Sentence 1 WO)

Possible rejection of the election

No later than three working days after receipt of the notification ( Section 17 (1) sentence 2 WO)

Announcement of the elected

As soon as the names of the elected are fixed by a two-week notice ( § 18 sentence 1 WO)

Sending the election minutes

Immediately after the election to the employer and the trade unions represented in the company ( Section 18 sentence 2 WO)

Invitation to the constituent meeting of the works council

Before the end of one week after the election day by the electoral board ( Section 29 (1) sentence 1 BetrVG)

Possible election contestation

No later than two weeks after the announcement of the election results ( Section 19 (2) sentence 2 BetrVG)

See also

literature

  • Rainer Sieg u. a .: Interactive guide through the works council election (including the election of the spokesperson committee and representatives of the severely disabled) . Deutscher Instituts-Verlag, Cologne 2005, ISBN 978-3-602-14654-3 (CD with interactive election calculator). - The Deutsche Instituts-Verlag belongs to the employer-related institute of the German economy in Cologne.
  • Peter Berg, Micha Heilmann: Works council election 2018. Instructions for works councils and electoral boards . Bund-Verlag, Frankfurt 2017, ISBN 978-3-7663-6643-6 .
  • Peter Berg, Micha Heilmann: Works council election 2018. Normal election procedure and simplified election procedure , instructions for use with voting software on CD-ROM. Bund-Verlag, Frankfurt 2017, ISBN 978-3-7663-6602-3 .
  • Tilman Anuschek: Works council election - manual for error-free election implementation. 5th edition. Rieder-Verlag, Münster 2017, ISBN 978-3-945260-46-3 (with CD-ROM and over 50 forms).
  • Burkhard Boemke : The works council election . With sample file. GfA Verlag (Society for Labor and Social Law eV, Göttingen) Göttingen 2005, ISBN 3-00-016933-4 .
  • Fitting, Engels, Schmidt, Trebinger, Linsenmaier: BetrVG: Works Constitution Act. 28th revised edition . Verlag Vahlen 2016, ISBN 978-3-8006-5099-6 .

Web links

Individual evidence

  1. Federal Labor Court February 26, 1992 - 7 ABR 37/91 - BAGE 70,12 = NZA 1992, 942
  2. Fitting BetrVG § 20 Rn. 7-11
  3. BAG May 24, 1965 - 1 ABR 1/65 - AP No. 14 to § 18 BetrVG
  4. BAG February 9, 1982 - 1 ABR 36/80 - BAGE 41, 5 = DB 1982, 1414
  5. BAG June 27, 1995 - 1 ABR 62/94 - AP No. 7 to § 4 BetrVG 1972 = DB 1995, 1409
  6. BAG April 11, 1978 - 6 ABR 22/77 - DB 1978, 1452