Changes in the German Works Council Election procedure: This applies to the upcoming Works Council Elections in 2022

On October 15, 2021, amendments to the Election Regulations for the Implementation of the German Works Constitution Act (Wahlordnung – WO) came into force. As a result, the changes provided for in the Works Council Modernization Act (Betriebsrätemodernisierungsgesetz) of June 18, 2021 have finally been implemented in the Election Regulations.

It should be noted at the beginning that the Works Council Modernization Act has already considerably expanded the options for conducting a simplified election procedure as of June 18, 2021:

• In companies with between 5 and 100 employees (previously between 5 and 50), a simplified election procedure takes place (sec. 14a (1) German Works Constitution Act – BetrVG).
• In companies with 101 to 200 employees (previously 51 to 100), the company and the electoral board can agree on a simplified election procedure (sec. 14a (5) German Works Constitution Act – BetrVG).

The new amendments to the Election Regulations are not only of interest to election committees and works councils, but are also of importance to companies. The changes apply with immediate effect and will be briefly summarized below:

• The minimum age for exercising the right to vote is reduced to the age of 16. However, the completion of the 18th year of age remains a prerequisite for the right to stand for election (eligibility).
• Non-public meetings of the election board may be held by means of video and telephone conferencing. The prerequisite is that
  • a resolution to this effect has been passed by the election committee,
  • confidentiality is ensured,
  • the session is not recorded,
  • a non-public session is permitted (e.g. not during the counting of votes).
• In addition to the reference to the deadline for filing an objection against the correctness of the voters’ list, the election notice must in future also contain the express reference that a contestation of the election is excluded if the reason for contestation is based on an error in the electoral list and an objection against this has not been duly filed (sec. 19 (4) sent. 1 Election Regulations). The contestation by employers is excluded insofar as they wish to base their contestation on the fact that the voters’ list is invalid, although the incorrectness is based on the information contained therein (sec. 19 (3) Election Regulations).
• If the election committee is aware that employees will not be present in the company on election day due to the nature of the employment relationship, or will not be present from the issuing of the election notice until election day for other reasons (e.g. illness) (sec. 24 (2) Election Regulations), the election notice shall be sent to these employees by post or electronically (e.g. by e-mail) (sec. 3 (4) sent. 4 Election Regulations).
• The voters’ list can be corrected or supplemented until the voting is completed. Inclusion in the voters’ list is a prerequisite for exercising the right to vote. The aim is to ensure that all employees can cast their vote on election day, including, for example, those whose employment relationship only began immediately before the election. Until now, the voters’ list could only be changed up to the day before voting began.
• There is another important change with regard to the proposal lists with employees nominated for the election. In companies with up to 20 employees, the requirement for supporting signatures will be waived entirely in the future (instead of two previously). In companies with 21 to 100 employees, the number of supporting signatures has been reduced to two 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, however, the signature of 50 persons entitled to vote is sufficient.
• Voting should continue to take place in person – even in times of pandemic. For the sake of the environment, voting envelopes are to be dispensed with in the case of on-site voting.
• Unlike in the past, absentee ballots must be sent 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 who will not be present at the company premises for other reasons (e.g. suspension of the employment relationship, incapacity for work). The absence from work must be expected to last 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, so that the deadline may end before midnight of a day (sec. 41 (2) Election Regulations). However, it must be noted that the deadline may not be before the end of the working hours of the majority of those entitled to vote.

The changes, in particular the possibility of postal voting for those working permanently from home, those on long-term sick leave, employees on parental leave, etc. are welcome, even if many would have liked to see a move away from voting in person in times of the pandemic. It certainly needs no further mention that the company’s duty to provide the election committee with all necessary information corresponds with the new regulations. For that and other reasons, companies may want to familiarize themselves with the applicable changes before the regular works council elections in 2022.