Employment Law18.10.2021 Newsletter

Amended election regulations for works council elections

On Friday, 15.10.2021, new election regulations for the election of the workscouncil and the youth and trainee representation have come into force. This means that the amendments of the Works Council Constitution Act (“Betriebsverfassungsgesetz”, BetrVG) already in force since 18.06.2021 as a result of the “Betriebsrätemodernisierungsgesetz” (Works Council Modernization Act) have been transported by the ordinance amending the election regulations, the election regulations for maritime shipping and the ordinance on the conduct of works council elections at postal companies into the election regulations. However, the amendments are not only of interest to electoral boards and works councils. Employers should be equally aware of the changes, especially in light of potential election challenges. We have summarized the changes to the election regulations for you below. They apply with immediate effect and therefore already for the next regular works council elections in 2022.

Meeting of the election committee by video and telephone conferencing

For the election committee, the principle of meetings in person remains unchanged.However, for now on also the election committee is entitled to hold non-public meetings by video and telephone conferencing according to section 1 (4) WO („Wahlordnung“, Election Regulations fort he Works Council) following a formal resolution. For meetings by video and telephone conference, it has be ensured - as already known from works council meetings - that third parties cannot take note of the content of the meeting and that meetings are not recorded. In addition to public meetings, among others, the examination and announcement of lists of candidates pursuant to section 7 (2) WO and the drawing of lots pursuant to section 10 (1) WO by the election committee must still be held in person. 

Increase of threshold values for simplified election procedure and reduction of support signatures for election proposals

As already known from the changes in force for the Works Council Constitution Act, the applicable threshold values for the mandatory and simplified election procedure have now also been adjusted in the election regulations (section 6 WO). For example, elections on the basis of proposal lists are now only required for elections of more than five works council members (section 6 (1) sentence 1 WO) if the simplified election procedure has not been agreed.

The number of support signatures required for election proposals in small and medium-sized companies has also been reduced. In micro-enterprises with up to 20 employees entitled to vote, support signatures are no longer required, so that the invalidity of a list of candidates pursuant to section 8 para. 1 no. 3 WO due to failure to obtain the required number of support signatures can only arise in enterprises with generally more than 21 employees entitled to vote (section 14 para. 4 sentence 2 and 3 BetrVG). In small companies with up to 100 employees entitled to vote, support signatures are required from at least two employees entitled to vote and in companies with generally more than 100 employees entitled to vote from at least one-twentieth of the employees entitled to vote. In any case, support signatures of 50 employees is sufficient.

Obligations of the election committee to provide information in the election notice 

It is long known that the election notice to employees must contain numerous mandatory details. The legislator has now added further mandatory information: For example, the election committee must expressly point out that the works council elections can no longer be contested on the grounds that the electoral list is incorrect unless an objection to the electoral list has been duly filed in advance and the person contesting the election was not prevented from filing an objection in due time (section 19 (3) BetrVG).

Otherwise, however, contrary to the previous regulation, the electoral list can still be corrected until close of voting (section 4 para. 3 sentence 2 WO).

With the new regulations, the case law of the BAG on the determination of the end of the deadline (BAG, decision dated January 16, 2018 - 7 ABR 11/16) was also implemented in the election regulations: For cases regulated in section 41 (2) WO, the election committee may set a time for the end of the deadline, provided that such time shall not be earlier than the end of the working hours of the majority of the employees entitled to vote on the voting day. In the event that the election committee makes use of this provision, the committee has to specify the end of term in the election notice to the employees (section 3 para. 2 no. 3 WO).

Changes for the postal vote

Most of the amendments have been made to the election regulations with regard to postal voting: Thus, in the future, due to the new provision in section 24 (2) WO, the election documents must be sent to all eligible voters of whom the election committee is aware that they are notexpected to be present at the company a) at the time of the election due to the nature of their employment relationship (in particular, those employed in field service or with telework) or b) from the issuance of the election notice until the time of the election for other reasons (in particular, suspension of the employment relationship or incapacity for work), without the person entitled to vote having to request the election documents separately. In addition, the employer must provide the election committee with the information required for this purpose. Despite this extension, the principle of voting by presence will remain in place for the regular works council elections in 2022.

Changes for the election process and the counting of votes 

In line with the principle of sustainability, a ballot envelope is no longer required - as it is already the case with the election of employee representatives to the Supervisory Board. When voting, the employee shall fold the ballot paper in such a way that the vote is not visible from the outside (section 11 (3) WO).

In future, the opening of the postal voter envelopes may only commence after the votes have been cast in the voting in person at the beginning of the public session (section 26 (1) WO). Insofar as the written vote has been duly cast, the vote shall be recorded in the electoral roll and the ballot paper shall be placed from the ballot envelope in the ballot box, so that no distinction can be made between postal voters and those voting in person in the company.

A large number of new regulations will therefore apply to the regular works council elections in 2022. In order to limit election challenges as far as possible and to avoid subsequent blockades of the works council's work, or also in order not to block the possibility of contestation from the outset, employers are well advised to be familiar with the new regulations.

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Alexandra Groth

Alexandra Groth

PartnerAttorneySpecialized Attorney for Employment Law

Konrad-Adenauer-Ufer 23
50668 Cologne
T +49 221 2091 341
M +49 152 2417 4406