Part II of III: Works Council Elections in Germany – Who Does What and How Are Election Proceedings Run?

March 2018 is getting closer and works council (re)elections will again be on the agenda in Germany. We started this three-part blog last November with Jens Peters` introduction and overview to this topic.  See November 7, 2017 article. In this Part II, we briefly concentrate on the “Who does what” during the election proceedings and provide you with an overview of how election proceedings will run in an ordinary way.

Who does what?

The election committee (“Wahlvorstand”) is in the driver’s seat, with responsiblilities for leading and executing the election. Its main tasks are to inform the work force about the election and its proceedings (“Wahlausschreiben”) and to create the list of employees eligible to vote and to be voted (“Wählerliste”). If a works council already exists, the three-member election committee is appointed by the current works council; otherwise, the employees vote for the election committee in a staff meeting. The employer bears the costs of the election and is obliged to support the tasks of the election committee. In particular, the employer must provide the facilities, as well as all information requested to establish the voting lists. The current works council`s role during re-elections is limited to appointing the election committee, thereby initiating the works council elections.  It plays no further active role during the election proceedings. Last, but not least, the employees have the right to vote and to run as candidates, but they are not obligated to participate in the elections. Those who are interested in running as candidates can “advertise” for their own campaign at their personal expense.

Who can vote and who can be voted for?

Only those employees included by the Wahlvorstand  in the Wählerliste can vote and can be voted for. The basic requirement to vote is a minimum age of 18 years.  The basic requirement to be voted for as candidate is a minimum seniority of six months. But what about so-called leased employees (“Leiharbeitnehmer”), sick employees or employees with special employment situations? Leased employees must have been employed at least for three months in order to vote, and they can only stand as a candidate if they were taken over by the leasing employer. Sick employees, employees on garden leave and employees with dormant employment are entitled to vote and be voted for. Employees who are on old-age, part-time schemes lose their right to vote as soon as they enter the phase of release from work. Employers are therefore well advised to offer support to the election committee and to carefully monitor the election proceedings.

Election proceedings, step by step:

  • appointment of the elections committee;
  • allocation of so-called key employees (“leitende Angestellte”) – this might be a crucial issue because this will result in who is unable to vote and who may not run as a candidate, and may result in discussions with the works council;
  • establishment of the “Wählerliste”;
  • official announcement of the upcoming elections via a publication (“Wahlausschreiben”) including the voting list (this occurs immediately after the elections committee has been appointed);
  • any contest of the list within two weeks of its announcement;
  • nominations of employees as candidates within two weeks of the announcement;
  • review of the Wählerliste and corrections of potential mistakes;
  • official announcement of the due and valid list of employees eligible to vote;
  • voting on the list of candidates – the voting is done in secret;
  • votes counted with the result officially announced by the election committee and the “winners” informed;
  • official announcement of the candidates who have been voted for;
  • an official transcript of the election (“Wahlniederschrift”) recorded and published by the election committee; and
  • the newly elected works council holds its first constitutional meeting no later than one week after the election date.

Simplified election proceedings in operations with less than 50 employees

In the event no works council currently exists, a two-level election proceeding will take place.  In a first staff meeting, the election committee will be voted for and the elections will hereby be officially initiated. Please note that the employer is obliged to provide the elected election committee with all relevant information and documentation necessary to establish and create the list of the eligible employees. This needs to be done in a strict confidence by handing over all material in a sealed envelope. In a second staff meeting, the new works council will be voted for. Prior to the second meeting but also during the election meeting, candidates can be nominated.  In operations with 20 to 50 eligible employees candidates need a minimum of three supporters in order to be valid nominations (in operations with under 20 eligible employees two supporting votes are sufficient for candidates).

With all the complexity, employers should be aware of potential pitfalls of works council elections to avoid mistakes which may result in situations where the entire election may be contested or – in the worst case – may be void. Mistakes may easily lead to unnecessary debates, time consuming disputes and costly reruns of elections (we will address these topics in our final Part III).

Bryan Cave LLP has a team of knowledgeable lawyers and other professionals prepared to help employers assess their  works council obligations. If you or your organization would like more information on works council or any other employment issue, please contact an attorney in the Labor and Employment practice group.