The so-called Works Council Modernization Act, which came into force in June 2021, has already brought about numerous changes, and the amended election regulations for the implementation of the Works Council Constitution Act (BetrVG) will also be promulgated shortly and come into force in time for the 2022 works council elections.
Interest of the employer in an orderly and effective works council election
The election of the works council is, in substance, an election of the employees, which is to be financed by the employer. But other than that, the employer shall support the election process neutrally. Nevertheless, the employer regularly has an interest in the proper execution of the election. An incorrect election procedure can lead to a contestation of the election and, in serious cases, even to the nullity of the election. In this case, the complex election procedure would need to be repeated, resulting in even higher costs for the employer. In addition, the employer regularly has an interest in clear and stable conditions in the day-to-day cooperation with the works council.
Changes due to the Works Council Modernization Act
The legislative purpose of the Works Council Modernization Act is to promote the establishment of works councils.
Employers in companies with existing works councils, but also employers in companies in which no works councils have yet been elected, must be prepared for the fact that the establishment of works councils, the election procedure and the associated special protection against dismissal will be extended and made easier for the employee side. For example, the age limit for eligibility to vote has been lowered, the scope of the so-called simplified election procedure has been extended and the special protection against dismissal has been extended to employees who prepare and initiate the works council election. The main changes are as follows:
- Active suffrage from the age of 16
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.
- Extension of the simplified election procedure
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.
- Extension of special protection against dismissal in the event of the establishment of a works council
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.
- No more support signatures in small businesses
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.
- Limited election contestation
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.
- Facilitated elections of youth and trainee representatives
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).
Amendments to the electoral regulations
In addition to the amended legal framework in the BetrVG, the election regulations for implementing the BetrVG will be amended and adapted to the new legal situation. The Federal Council is expected to adopt the planned amendments in the first half of October. For practical purposes, these are the most important changes for the procedure and process of works council elections based on the draft bill:
- Video and telephone conferencing
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).
- Dispatch of absentee ballot documents without request
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.
- Correction of the voters list
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.
- Waiver of ballot envelopes in presence elections
This is intended to facilitate the work of the election committee during the count and contribute to sustainability and resource conservation.
- Time of processing votes cast in writing
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.
- Deadline for declarations
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.
Especially in smaller companies, the election procedure has been simplified and accelerated. The option of digital meetings for the election committee is also in line with the times. Nevertheless, the "great leap" in the direction of digitization has not been achieved. Furthermore, the initiation, execution and evaluation of the election are very complex and thus error-prone processes.
Employers would be well advised to familiarize themselves with the legal innovations regarding works council elections and the election process in good time in order to avoid subsequent disputes about the effectiveness of the election. Although the employees organize the election, the costs for this are to be borne by the employer.
In the second part of this blog on the works council elections next spring, we will look at the process of the works council election, the most important obligations of the employer in this context and typical sources of error.