Election regulations (works council election)

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Basic data
Title: First ordinance to
implement the Works Constitution Act
Short title: Electoral rules
Previous title: First ordinance to implement the Works Constitution Act
Abbreviation: WHERE
Type: Federal Ordinance
Scope: Federal Republic of Germany
Issued on the basis of: Section 125 BetrVG
Legal matter: Labor law , co-determination law
References : 801-7-1-1
Original version from: March 18, 1953 ( Federal Law Gazette I p. 58 )
Entry into force on: March 21, 1953
Last revision from: December 11, 2001
( BGBl. I p. 3494 )
Entry into force of the
new version on: 		December 15, 2001
Last change by: Art. 2 Regulation of June 23, 2004
( Federal Law Gazette I p. 1393, 1403 )
Effective date of the
last change: 		July 1, 2004
(Art. 3 of June 23, 2004)
Please note the note on the applicable legal version.

An election regulation (WO) regulates the holding of an election . In Section 126 of the Works Council Act, the German federal legislature authorized the German Federal Government to regulate the details of the election procedure for the elections to the works council within the meaning of Section 14 of the Works Council Act by means of an ordinance of the Federal Ministry of Labor and Social Affairs . On this basis, the “First Ordinance for the Implementation of the Works Constitution Act ( Election Ordinance - WO )” was issued on December 11, 2001 ( Federal Law Gazette I p. 3494 ).

The structure of the WO for the works council election

The electoral regulations are divided into 4 parts, some of which contain sections and subsections.

In the first part of the WO, the first part completely and comprehensively describes the entire election procedure for the standard case, the works council election in a larger company. The simplified electoral process for companies with up to 50 employees according to Section 14a BetrVG is regulated in the second part; here the WO often refers to the first part and only regulates what deviates from the normal electoral procedure. The same control technology is also used for the regulations governing the election of youth and trainee representatives.

The general rules for all types of elections

Basic rules for the actions of the electoral board (§ 1 WO)

The electoral board is responsible for carrying out the works council election . As a rule, it has 3 members; In larger companies, the number can be increased if necessary for the proper implementation of the election, but there must always be an odd number of members ( Section 16 (1) BetrVG). According to Section 1 (2) WO, the electoral board takes its decisions with a majority of its members (absolute majority); a majority of the votes cast (relative majority) is therefore not sufficient. In addition, Section 1 (2) WO stipulates that minutes must be drawn up for each meeting of the electoral committee, which must be signed by at least the chairman and one other member of the electoral committee.

The electoral roll (§ 2 WO)

The electoral board has to draw up a list of voters, which shows which persons are entitled to participate in the works council election. In operational practice, this list is synonymous with the “ electoral register ”. On election day, only those who are entered on the electoral roll can vote. The purpose of the electoral roll is to clarify a possible dispute about the eligibility of individuals to vote before the election day.

All employees of the company who are entitled to participate in the election must be included in the electoral roll. In order to ensure that the electoral roll is correctly drawn up, the electoral board is dependent on the employer's input, especially in larger companies. Section 2 (2) WO therefore obliges the employer to provide the electoral committee with the necessary information and make the necessary documents available.

The finished electoral roll must be made public by the electoral board so that all employees can check whether it has been drawn up correctly. If an employee thinks that the electoral roll has been created incorrectly, he has the right to object ( § 4 WO).

The entry in the electoral roll is a mandatory requirement for the candidacy for the works council election (exercise of the passive right to vote ); if nominations are received by the electoral board , it must first check whether the candidates are listed on the electoral roll ( Section 2 (3) WO).

The electoral committee must keep the electoral roll up to date until the day of the election. This means, in particular, that he must delete employees who have left the company and add new employees who have joined the electoral period (if they are older than 18 years of age, Section 7 BetrVG) to the list ( Section 4 (3) WO).

The electoral notice (§ 3 WO)

The works council election is officially initiated with the publication of the announcement. In the election notice, the electoral board informs the employees of the company, among other things, when and where the election will take place, how large the works council will be, what gender quota applies to the composition of the works council and how applicants can participate in the election by submitting nominations can.

The election notice is a formal document which, in the normal election process, must contain at least 13 different pieces of information, all of which are listed in § 3 WO. Forgetting any of this information can make the choice voidable. In the simplified electoral process for smaller companies, the electoral notice according to Section 31 WO even contains a total of 15 mandatory information , which is also listed there in full and clearly (Section 3 Paragraph 2 WO and Section 31 Paragraph 1 WO).

Seats for the gender in the minority (§ 5 WO)

According to Section 15 (2) BetrVG, the gender that is in the minority in the workforce must have at least as many seats in the works council that the gender ratio in the workforce is reflected in the works council. This regulation was included in the works constitution law in 2001. The gender-specific protection of minorities has since been one of the hot topics of works constitution law. The BAG has considered the provision to be valid (BAG March 16, 2005 - 7 ABR 40/04 - BAGE 114, 119 = AP No. 3 to § 15 BetrVG 1972 = Streit 2006, 68).

Section 5 WO specifies the details of how the number of seats for the gender in the minority in the works council is determined. The conversion takes place according to the d'Hondt counting method, which is described in § 5 WO.

The starting point for the calculation is the determination of the number of women and the number of men in the workforce. The key date for this calculation is the day on which the announcement of the election is published ( Section 5, Paragraph 1, Clause 3 WO).

Example: 48 women and 128 men work in the company. That makes a total of 176 employees, so the works council consists of 7 members according to § 9 BetrVG. First, divide 48 for women by 1, then by 2, then by 3, etc. The “female number series” is: 48 - 24 - 16 - 12 - 9.6 - 8 ... You do the same with the number of male workers. The "male number series" is then: 128 - 64 - 42.66 - 32 - 25.6 - 21.33 ... Since the works council consists of 7 members, you have to find the 7 highest numbers from the two series of numbers and their origin from the Determine the “male” or the “female” series of numbers. The result is: 128 (male), 64 (male), 48 (female), 42.66 (male), 32 (male), 25.6 (male), 24 (female). So the women, who in the example make up the gender in the minority, are entitled to at least 2 seats on the works council, since (only) 2 of the 7 highest maximum numbers come from the “female number series”.

The voting system

The electoral system is understood here to mean the manner in which the voter can influence the composition of the works council through his or her voting decision. In this respect, however, it is not a uniformly used technical term. The Works Constitution Act knows the electoral system of proportional representation (list voting) and the voting system of majority voting (person voting).

The list choice

Section 14 (2), first sentence, BetrVG prescribes proportional representation for works councilelections, which in operational practice is often referred to as list voting (for exceptions, see below under “election of persons”).

In proportional representation, lists of candidates are drawn up by the interest groups represented in the company “in a recognizable order” ( Section 6 (3) WO) and submitted for election. In this case, the voters only have one vote that they can give to the list of their choice. Voters cannot vote for individuals. The seats in the works council are allocated to the lists according to the proportion of votes obtained. For example, if a list has won 3 seats, the first three people are selected from the list (without taking into account the special features of the promotion for the gender in the minority).

The choice of people

Pursuant to Section 14 (2) sentence 2 BetrVG, people will be elected as an exception ( majority vote ) if

  • only 1 list is up for election or if
  • is elected in the simplified voting procedure according to § 14a BetrVG for companies with up to 50 employees.

Individuals (and not lists) are available for selection when choosing a person. Each voter has as many votes as there are seats to be allocated on the works council ( Section 20 (3) WO). He can distribute this to the people he trusts; an accumulation of votes is not provided for in the electoral law for the works council. The people who received the most votes are elected (the relative majority is sufficient).

The election process

The election is usually carried out in such a way that the person entitled to vote casts his or her vote personally and secretly at the polling station. Postal voting (in the terminology of the electoral regulations, written voting ) is possible at the request of those entitled to vote who are prevented from casting direct votes due to absence from the company (Section 24 (1)). A more detailed reason for this is not necessary. There are further regulations for those entitled to vote who are known to the electoral committee that they will probably not be in the company at the time of the election (Section 24 (2)), as well as for parts of the company that are geographically distant and for small companies. This applies to both the normal and the simplified voting procedure. The general arrangement of a postal vote in disregard of the election regulations leads to the contestability of the works council election.

The personal voting

In accordance with the basic values ​​of the German Basic Law and in accordance with democratic electoral tradition, the works council is elected in free and secret (§ 14 BetrVG). The free and secret election is best guaranteed when the voter casts his vote under the control of the electoral committee. The electoral committee must ensure that everyone can cast their vote freely and unobserved ( Section 12 (1) WO). He is obliged to intervene if he has the impression that other people want to observe or even influence the voter when they decide to vote. Votes are cast by filling out the voting slip .

If the employees are distributed over several locations, several polling stations can be set up. It is also conceivable to use a mobile polling station that gradually travels to all the workforce's locations. In both cases, however, it must be noted that the ballot box must either be under constant observation or that it must be formally sealed - for example during transport or during the night.

Postal vote

Eligible voters who are unable to cast their votes in person at the time of the election because they are absent from the company must, at their request, have the electoral board the documents required for a postal vote (“written vote”) (Section 24 (1), Section 35 (1) sentence 3) WO). When voting by post, the person entitled to vote must confirm that he has personally marked the voting slip.

If you vote in the normal election process, there is no deadline for applying for a postal vote. However, the envelope with the voting slip must reach the electoral committee before the polling station closes. Envelopes arriving late will not be counted, the electoral committee must include them unopened with the election documents with a note stating the time of receipt and destroy them unopened one month after the announcement of the election results if the election has not been contested (Section 26 WO).

In the case of the simplified electoral procedure, the request for postal voting must be received by the electoral committee at least three days before the day of the election meeting for the election of the works council ( Section 35 (1) sentence 2 WO). This sets the postal voter a reasonable deadline within which the postal vote must be received. Due to the observance of the usual mail delivery times, this will usually only be possible after the election meeting. One speaks therefore of subsequent written voting .

If the electoral committee is aware that individual eligible voters will probably not be present in the company at the time of the election, depending on the nature of their employment relationship (in particular those in the field or teleworking and working from home), it has unsolicited this in accordance with Section 24 (2) WO to submit the postal voting documents.

Postal voting is also permitted according to Section 24 (3) WO, if the electoral board orders postal voting for parts of the company and small companies that are geographically far away from the main company.

Postal voting is not permitted in any other than the case constellations mentioned.

The vote count

As a rule, the counting of votes takes place immediately after the polling station is closed ( § 13 WO). Only if the postal voting right has been exercised in the simplified voting procedure and not all postal voting documents issued have yet been received on the day of voting, there will be a subsequent counting of the votes in accordance with Section 35 WO. A separate date for the counting is also unavoidable if there are several polling stations and the ballot boxes filled with the ballot papers must first be brought to the counting location.

In any case, the counting must always take place in front of the public. Therefore, the date, place and time of the vote counting must already be made public in the election notice. In addition, the counting room must be accessible without any obstacles.

The allocation of seats in the works council

The elected members of the works council must be determined from the result of the vote count. In doing so, the peculiarities that are caused by the funding for the gender in the minority must be taken into account.

Allocation of seats when choosing a list

According to Section 15 (1) WO, when voting on lists, seats are allocated to the lists using the d'Hondt counting method .

If, after the allocation of seats, it emerges that the minimum number of seats for the minority gender has been missed, an exchange procedure will be carried out, as described in Section 15 (5) WO.

In principle, the allocation of seats is broken up again from behind. So you choose the elected person who made it to the works council due to the lowest maximum number used; if it belongs to the gender in the minority, it is skipped and you look for the person who has made it to the works council with the second lowest maximum number, etc. If you find someone elected with the "wrong" gender in this way, this person loses their seat on the works council, which was already believed to be safe. Instead, the person on the list concerned who is furthest at the top, who does not yet have a place on the works council and who belongs to the minority gender, gets the seat. If there is no such person on the list concerned, the place falls on another list that still has applicants of the appropriate gender (list jump). This exchange process will be carried out until the quota is correct or until it is certain that the quota can never be reached because there are no more applicants with the appropriate gender.

Allocation of seats when choosing people

According to Section 22 (1) WO, when choosing a person, the seats to which the minority is entitled are allocated in advance. For this purpose, only those people who belong to this gender are considered. These seats are allocated to them according to the number of votes allotted to them.

The remaining seats are then allocated, regardless of gender, based solely on the number of votes received - disregarding the number of people who have already achieved a seat according to the gender quota ( Section 22 (2) WO).

Further tasks of the electoral board after the election day

After it has been determined who is elected to the works council, the elected must still accept the election ( Section 17 WO). If everyone has accepted the election, the election result is to be made publicly available to the company wherever the election notice was posted ( § 18 WO). In addition, according to § 18 WO, the employer and the trade unions represented in the company receive a copy of the election record (protocol on the counting of votes).

Ultimately, the electoral board has to close the election files and hand them over to the works council. § 19 WO. In addition, according to Section 29 (1) BetrVG , he must also invite the newly elected works council to the first meeting and chair this meeting until a chairman has been elected from among the works council.

Comparable regulations from other areas of law

Other employee representatives in the private sector

Insofar as the workforce in the private sector can elect members of the supervisory board according to the One-Third Participation Act or the Co-Determination Act , this is also done on the basis of an election regulation that is similar to the election regulation for the works council. There are also electoral regulations for the elections to the spokesperson's committee for senior executives in accordance with the Spokesperson's Committee Act , the basic ideas of which are borrowed from the electoral regulations for the Works Constitution Act.

Staff council election

The Staff Council is in Germany corresponding to the works council represents the interests of employees ( workers and civil servants ) of the public service . Staff councils are elected in the federal authorities on the basis of the Federal Personnel Representation Act (BPersVG) and in the federal states and municipalities on the basis of the federal states' personnel representation laws. Both for the BPersVG and for the many state employee representation laws, election regulations have been issued for the election of staff councils. The big lines are the same in all electoral codes. Nevertheless, there are a few special features to consider for the staff council elections.

Employee representation in the area of ​​the Catholic or Protestant churches

The operational representation of interests for the employees in the churches and religious communities is the employee representation .

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