Works council elections 2022

The age of eligibility to vote was reduced from 18 to 16. In the future, all employees who have reached the age of 16 are entitled to participate in the works council election (Section 7 BetrVG). The right to stand for election, on the other hand, remains unchanged. Therefore, only employees who have reached the age of 18 can still be elected (Section 8 BetrVG). As a result of the lowered age for eligibility to vote, more employees will participate in works council elections in the future.

The so-called simplified election procedure now applies to establishments with generally 5 to 100 employees entitled to vote (§ 14a BetrVG). In companies with generally 101 to 200 employees entitled to vote, the election committee and the employer can agree on the application of the simplified election procedure. It can therefore be assumed that for many companies with fewer than 200 employees entitled to vote, the upcoming works council election can be carried out significantly faster than in the last works council election in 2018. The legislative designation as a "simplified" election procedure is somewhat misleading. In fact, the works council election is mainly accelerated in terms of time, but the election procedure itself is still not significantly simpler than the so-called regular election procedure.

The special protection against dismissal in connection with the establishment of a works council is extended. Instead of only three, the first six employees listed in the invitation to the election meeting now enjoy statutory special protection against dismissal, which only allows termination for good cause (Sec. 15 (3a) KSchG). The background to the extension of the protection against dismissal is that the first three employees who invite to the election meeting regularly also form the three-member election committee. If one of these persons drops out, for example due to illness, colleagues should not be deterred from taking part in the works council election as successors due to a lack of protection against dismissal.

The new Sec. 15 (3b) KSchG extends the statutory special protection against dismissal to employees who have undertaken preparatory actions to establish a works council for the first time. Only ordinary terminations for operational reasons remain possible, as does termination for cause. In order to obtain this special protection against dismissal, it is necessary to submit a publicly certified declaration that the employee intends to establish a works council. According to the explanatory memorandum to the law, a preparatory act is, for example, a discussion with colleagues to determine their willingness and support to establish a works council and to plan further steps. Pursuant to Section 129 of the German Civil Code, the publicly certified declaration must be in writing and the declarant's signature must be certified by a notary public. In terms of time, the protection against dismissal begins with the certification of the signature under the declaration of intent until the time of the invitation to a works or election meeting, but for a maximum of three months.

In order to simplify the formalities of a works council election and thus to facilitate and promote the establishment of works councils in general in small and medium-sized companies, election proposals in companies with generally up to 20 employees entitled to vote will no longer require a signature (so-called support signature). In companies with generally 21 to 100 employees entitled to vote, election proposals must be signed by at least two employees entitled to vote, and in companies with generally more than 100 employees entitled to vote, by at least 1/20 of the employees entitled to vote. Furthermore, the signature of 50 employees entitled to vote is sufficient in all cases. Previously, in companies with more than 20 employees entitled to vote, the signature of at least 1/20 of the employees entitled to vote was required.

In the future, the contestation of the works council election by the electoral board can no longer be based on the fact that the electoral list was incorrect if no objection to the correctness of the electoral list was previously filed for this reason in an orderly and timely manner. In the future, the election committee shall point this out in the election notice. An exception is made if those entitled to vote were prevented from filing the objection. Employers should note that in future they will no longer be able to contest the works council election on the basis of an incorrect voter list if the incorrectness of the voter list is based on the information provided by the employer. In this respect, employers are required to pay even greater attention to the correctness and completeness of the employee lists to be submitted in the future.

The Works Council Modernization Act not only simplifies the formalities and procedures for works council elections, but also for elections to youth and trainee representation bodies. For example, the previous age limit for trainees in Section 60 of the Works Council Constitution Act (BetrVG) was deleted, and the changes and simplifications introduced for works council elections with regard to the simplified election procedure apply accordingly to the election of youth and trainee representatives (Section 63 BetrVG).

Not only the works councils themselves should be able to use the option of digital communication and meetings via video and telephone conferences (Section 30 BetrVG). The same should also apply in principle to election committees, with restrictions for certain activities that require mandatory presence (e.g. checking and processing election documents or counting votes).

In the future, the election committee may decide to send absentee ballots to employees without their request if they have already been absent from the company for a longer period of time and the election committee is aware that they are not expected to return to the company before the election. This is intended to enable as many eligible voters as possible to take part in the election who might otherwise not do so. In addition to cases of incapacity for work, this also includes, for example, maternity leave or parental leave.

The electoral list includes all employees of the company who are actively registered to vote. Previously, this list could only be corrected up to the day before voting for the works council election began. In the future, corrections to the electoral list will be possible for longer, namely until the end of voting on the day of the election itself. New employees joining the company at short notice before the election can therefore still be added to the electoral list at very short notice and vote.

This is intended to facilitate the work of the election committee during the count and contribute to sustainability and resource conservation.

In the future, votes cast by mail are to be processed only after the ballot has been cast at the beginning of the vote count. Up to now, the election committee places the votes cast by mail in the ballot box immediately before voting is completed. Now, after the votes are cast, the envelopes are opened and the ballots are placed in the ballot box. This is to make it impossible to identify the votes cast by mail.

In the future, the election committee may bring forward the end of the deadline for submitting certain declarations. According to this, the end of the respective day (24:00 hours) can no longer be decisive, but an earlier time, which, however, may not be before the end of the working hours of the majority of the voters on this day. This may be relevant, for example, for the submission of election proposals or for an objection to the correctness of the electoral list.