Not enough candidates: Works council election still possible.

Rules for works council elections

A works council can essentially be elected at companies with at least five employees who are eligible to vote. The eligibility to vote is governed by Section 7 of the Works Constitution Act (BetrVG) and the requirements for eligibility by Section 8 of the Works Constitution Act (BetrVG).

The number of works council members to be elected is based on the number of employees who are eligible to vote (Section 9 of the Works Constitution Act (BetrVG)). For example, at companies with more than 100 and less than 200 employees, the works council generally consists of seven members.

As a rule, companies have enough eligible employees. However, the employees themselves are frequently unwilling to stand for election in works council elections.

Lack of candidates – the case before the Federal Labor Court

A works council was to be elected at a clinic with 170 employees. Section 9 of the Works Constitution Act (BetrVG) stipulates that the company this size requires seven works council members.

However, only three female employees stood for election. They were all elected and accepted the election. As only three candidates were elected instead of the requisite seven stipulated in Section 9 of the Works Constitution Act (BetrVG), the employer judged the election to be invalid.

Despite that, both the Labor Court of Hamburg and the Higher Labor Court of Hamburg ruled that a smaller works council should be elected in the event of a lack of candidates based on the analogous application of Section 11 of the Works Constitution Act (BetrVG). The number of works council members for the next lower company size would then apply.

Decision of the Federal Labor Court (BAG)

The Federal Labor Court shared the same opinion. Insufficient candidates for election to the works council does not represent an obstacle to a works council election.

Nevertheless, the court does not apply Section 11 of the Works Constitution Act (BetrVG) analogously in this case. Rather, the court regards the situation as a loophole which needs to be closed by further developing the law to ensure that a works council can also be elected in this case. The size of the works council must be reduced to the next lower level specified in Section 9 of the Works Constitution Act (BetrVG) until the number of applicants is sufficient to establish a works council with an odd number of members.

To further justify the development of the law, the Federal Labor Court refers to Section 1 of the Works Constitution Act (BetrVG), which describes the legislative concept of electing works councils at companies that are capable of forming works councils.

Any provision regulating the election must be interpreted in such a way that the purpose of the law to form works councils is achieved where possible.

The Federal Labor Court has added an additional argument: The fact that there were not enough candidates does not justify the conclusion that the workforce did not want to set up a works council.

Furthermore, the Federal Labor Court did not accept the objection that a “smaller” works council was incapable or no longer capable of fulfilling its role. A “smaller” works council remains feasible due to the fact that the individual works council members are released from their duties to a greater extent than is the case with the works council having the number of members stipulated by Section 9 of the Works Constitution Act (BetrVG).

Therefore, the Federal Labor Court concluded that electing a “smaller” works council renders the works council election neither void or contestable.

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