Works council elections 2022 – Appointing the election committee.

 The works council is generally responsible – Are there exceptions?

Works council elections 2022 – Appointing the election committee.

The works council election is organized and carried out by an election committee. The law does not allow for the direct election of the works council by the workforce. Depending on the situation, either the works council, the central works council, the group works council, the employees or the labor court is responsible for appointing the specific election committee.

Companies with a works council

Essentially, the company’s incumbent works council is responsible for appointing the election committee for the upcoming works council election. The works council appoints the election committee at least ten weeks before the end of its regular term. The works council also remains responsible for appointing the election committee even if it fails to comply with this deadline.

If the election committee has not yet been appointed eight weeks before current works council’s term of office comes to an end, the labor court will appoint one at the request of a trade union represented at the company or at the request of at least three employees with voting rights. Nevertheless, the works council continues to bear the primary responsibility for appointing the election committee. As such, it may still appoint an election committee up until the labor court decision regarding the appointment of the election committee has entered into force, but not beyond the end of its regular term of office. Secondary to the works council, the general works council or group works council are also entitled to appoint an election committee if the works council has not yet done so eight weeks before the end of its term of office.

Furthermore, the works council must immediately appoint an election committee to hold the works council election in the following three cases:

  • If, after 24 months calculated from the election day, the regular workforce has increased or decreased by half (but at least fifty).
  • If the total number of works council members including substitutes has fallen below the prescribed number of works council members.
  • If the works council decides to resign by the vote of a majority of its members.

In these cases, an extraordinary works council election is held.

If the works council fails to fulfill its obligation to immediately appoint the election committee, the central works council or group works council will appoint the committee. However, due to the fact that the local works council to be elected bears the primary responsibility for this, the immediate appointment of an election committee by the central works council or group works council would not be permissible. A reasonable period of at least two weeks must be granted. However, if the company has neither a central works council nor a group works council, or if they have failed to take action, the labor court must appoint an election committee.

If a company is split up or undergoes a merger, and the works council only continues to hold a transitional mandate, a new works council must be elected without delay in accordance with Section 21a Works Constitution Act (BetrVG). In this case, the law stipulates that the works council with a transitional mandate must appoint an election committee without delay.

Companies without a works council

At companies without a works council, but which are capable of establishing a works council, the central works council or, if this council does not exist, the group works council is responsible for appointing an election committee. If neither a central works council nor a group works council exist, or if the central works council or group works council fail to appoint an election committee, the employees will elect the election committee at a works meeting. Either at least three company employees with voting rights or a trade union represented at the company may call for the works meeting.

If the works meeting is not held despite being called, or if the works meeting fails to elect an election committee, the labor court will appoint an election committee at the request of at least three company employees with voting rights, or at the request of a trade union represented at the company. As such, the labor court only becomes responsible

  • if the company does not have a central works council or a group works council,
  • or these works councils have failed to take action and the call to hold a works meeting was issued yet the meeting did not to take place, or an election committee was not elected.

A works meeting may be called and an election committee elected as long as the labor court’s election committee appointment has not yet entered into force.

Contesting the election/dissolution of the works council

If the works council election is successfully contested (in a legally binding manner), and the works council is successfully dissolved (in a legally binding manner), the existing works council is then no longer responsible for appointing the election committee.

If the election is successfully contested, the central works council or group works council appoints the election committee. If the company has neither a central works council nor a group works council, or if these councils have failed to take action, the labor court must appoint an election committee. If the works council is dissolved, the labor court immediately appoints an election committee.

If a works council already exists, then the works council is responsible for appointing the election committee under normal circumstances. At companies without a works council, the central works council or group works council is responsible for appointing the election committee and, subordinate to these, on the labor court. Exceptional situations must be taken into consideration.