Works council elections 2022: Determining the elected candidates.

 Every candidate has to have equal access opportunities.

The election procedure for works council elections is prone to errors. What standards does the Federal Labor Court apply?

Every works council election candidate has to have equal opportunities for access. Every vote cast must have equal weight. If the works council election is based around multiple nomination lists as a proportional representation election, the election regulations stipulate the d’Hondt method to determine the distribution of seats. This method has proven its value. It takes into account the principle of equality of choice, and also freedom of association (BAG, decision dated November 22, 2017 – 7 ABR 35/16).

How to use the d’Hondt method
To determine the elected candidate after counting the votes cast using the d’Hondt method, the numbers of votes cast for the individual lists of candidates are divided sequentially by 1, 2, 3, 4, etc. This results in maximum quotients, which then determine the mandates. The candidates are considered in accordance with the order specified on the list.

The following example illustrates how to use the d’Hondt method: A works council with nine members has to be elected at the company (201 to 400 employees). Three candidate lists were submitted. List A received 210 votes, List B 120 votes and List C 38 votes. The d’Hondt method results in the following distribution of the nine works council seats. The numbers shown in brackets indicates which candidate won the seat:

List AList BList Cdivided by:
210 (1)120 (2)38 (9)1
105 (3)60 (5)192
70 (4)40 (8)12,673
52,5 (6)309,54
42 (7)247,65


The election results are then as follows:
List A: the first 5 candidates
List B: the first 3 candidates
List C: the first candidate

If a candidate list contains fewer candidates than the number of seats it would be entitled to on the works council after using the d’Hondt method, the surplus member seats are then transferred to the following quotients of the other candidate lists.
However, this procedure for determining seats has been slightly modified because the minority gender among the employees is entitled to at least as many seats on the works council as the numerical ratio for that gender at the company, see Section 15 (2) of the Works Constitution Act (BetrVG).
In this case, the candidate on the lists with the lowest quotient who does not belong to the minority gender is then replaced by the candidate of the minority gender nominated from the same list in the order following the person who was not considered. If this proposal list does not contain a minority gender candidate, this seat is then transferred to the candidate list with the next highest quotient not yet considered and to the minority gender candidates there. This procedure is regulated in Section 15 (5) of the Election Regulations and continues until the minimum proportion of seats of the gender in the minority has been reached.

The election process is complicated and prone to errors. The d’Hondt method provides a legally reliable means of determining the works council seats.