German Works Council Election Procedures: Changes to Upcoming Elections in 2022

On October 15, 2021, amendments to the Election Regulations for the Implementation of the Works Constitution Act (Wahlordnung or WO) went into effect. As a result, the changes in the Works Council Modernization Act (Betriebsrätemodernisierungsgesetz) of June 18, 2021, have been implemented in the Election Regulations.

As of June 18, 2021, the Works Council Modernization Act—formally known as “The Act to Promote Works Council Elections and Works Council Activities in a Digital Working World”—considerably expanded the options for conducting a simplified election procedure as follows:

• A simplified election is mandatory for any company that has 5 to 100 employees who are eligible to vote, provided that employees call for an election (sec. 14a (1) Works Constitution Act (Betriebsverfassungsgesetz or BetrVG)). Previously, this option applied only to companies with previously 5 to 50 employees.
• A company that has 101 to 200 employees who are eligible to vote may agree on a simplified election procedure with an election committee (sec. 14a (5) Works Constitution Act – BetrVG). Previously, this option applied only to companies 51 to 100 employees.

The new amendments to the Election Regulations are of interest to companies in addition to election committees and works councils. The changes apply immediately and include the following:

• The minimum age for exercising the right to vote is reduced from the age of 18 to 16.
• An individual must be at least 18 years old in order to be eligible to run for office.
• Nonpublic meetings of the election board may be held by means of video and telephone conferencing on the condition that:
• • the election committee has passed a resolution to this effect;
  • confidentiality is ensured;
  • the session is not recorded; and
  • a nonpublic session is permitted (i.e., not during the counting of votes).

• In addition to a notice of the deadline to be observed for contesting the voters’ list, the election notice must also expressly state that a challenge to the election based on an error in the electoral list is excluded unless an objection to the electoral list has been duly filed (sec. 19 (3) sent. 1 Election Regulations). An employer’s challenge would be excluded insofar as the employer wished to base the challenge on the fact that the voters’ list was invalid when the incorrectness was due to the employer’s information contained therein (sec. 19 (3) sent. 3 Election Regulations).
• If the election committee is aware that employees will not be present on the company’s premises on election day due to the nature of the employment relationship, or that they will be absent from the time of the issuance of the election notice until election day due to other reasons (e.g., illness), the election notice must be sent to those employees by post or electronically (e.g., by email).
• The voters’ list can be corrected or supplemented until the voting has been completed. Inclusion in the voters’ list is a prerequisite for exercising the right to vote. The aim is to ensure that all employees can vote on election day, including, for example, those whose employment relationships only began immediately before the election. Prior to the amendments, the voters’ list could be changed only up to the day before voting began.
• There is another important change with regard to the proposal lists of employees nominated for election. In companies with up to 20 employees, the requirement for supporting signatures has been waived entirely (instead of 2 employees’ signatures previously). In companies that have 21 to 100 employees, the number of supporting signatures has been reduced to 2 eligible voters (instead of 1/20th of the workforce). In companies with generally more than 100 employees entitled to vote, the requirement for signatures by at least 1/20th of the employees entitled to vote remains. In any case, the signatures of 50 persons entitled to vote is sufficient.
• Voting will continue to take place in person—even in times of pandemic. For the sake of the environment, voting envelopes are not necessary in the case of on-site voting.
• Unlike in the past, the election committee must send absentee ballots without request not only to employees who are not expected to be present at the company at the time of the election due to the nature of the employment relationship (e.g., field staff and teleworkers), but also to those employees who will not be present on the company premises for other reasons (e.g., suspension of the employment relationship or incapacity for work). The presumptive length of absence from work is from the day on which the election notice is issued until the day of the election.
• Ultimately, the election committee may—contrary to the calculation of time limits according to the German Civil Code—set a specific time as the deadline on election day (sec. 41 (2) Election Regulations). However, the deadline may not be before the end of the working hours of the majority of those entitled to vote.

Many view these changes—in particular, the possibility of mail-in voting for those working permanently from home, those on long-term sick leave, and employees on parental leave, among others—as welcome, even if some would have liked to have seen a move away from voting in person during the pandemic. A company’s duty to provide the election committee with all necessary information coincides with the new regulations.