Works council elections 2022 – digital, hybrid or analog?

 Is it permitted to hold a works council election using voting software?

Works council elections 2022 – digital, hybrid or analog?

As a consequence of the corona pandemic, general meetings, shareholder meetings, and works council meetings can now be held virtually. However, in 2022, works council elections remain restricted to pens and paper.

In June 2021, the legislation governing the election procedure for works council elections was modified as part of the Works Council Modernization Act (BReModG). At the close of the year, the Election Regulations were also revised. In the process, cautious steps toward digitization and debureaucratization have been made. For example, voting envelopes are no longer mandatory when casting a ballot. This serves to save at least a little paper. As is already the case for the works council itself, the election committee can now also hold virtual or hybrid meetings.

Companies have long wished to digitize the works council elections and enable online works council elections. Nevertheless, the legislator has not made this possible. This is no longer reflects the times. An online works council election would be more environmentally friendly than an election using paper ballots, and could also contribute to a higher voter turnout. A higher voter turnout would, in turn, contribute to strengthening the democratic legitimacy of the works council. Furthermore, an online election would also be more cost-efficient for the companies themselves, especially for those companies with numerous operating units or employees in the field.

The Hamburg State Labor Court ruled that a works council election held online would be contestable, but at least not invalid (decision dated February 15, 2018 – 8 TaBV 5/17). However, according to the Hesse State Labor Court, the use of technical aids for counting votes is generally permissible (decision dated April 25, 2018 – 16 TaBVGa 77/18).

There is no comprehensible reason why votes in the works council election may not be cast online. Yet given that the election will doubtlessly be contested, holding an online election is not advisable. As an online election would be a particularly appealing option for larger companies, it is almost certain that the election would be contested.