Be Aware: Works Council Elections in Germany

Crucial points from an Employer’s Perspective

Every four years, regular works council elections are held in Germany. This spring 2022, elections will be held from March 1^st until May 31^st.

The Works Council Modernization Act

The Betriebsrätemodernisierungsgesetz was enacted last June 2021.  What’s new? While 18 remains the age required to be elected, age 16 is now the legitimate voting age, and thus the size of a Works Council may increase. Special termination protection (Sonderkündigungsschutz) has now been extended: up to 6 election committee members are now protected and employees who merely plan to elect a works council (Wahlinitiatoren) are now also awarded special dismissal protection for a period of 3 months.

No undue interference by the Employer

Works council elections may not be influenced or interfered with by the Employer: the courts are strict in punishing illegal interference in elections proceedings (Wahlbeeinflussung). Even mere suggestions and constructive criticism must be carefully substantiated by the Employer.

However, a recent decision of the Federal Labor Court (BAG), held that Employers are not prohibited from taking sides. This is important in view of recent developments of xenophobia. Right-wing unions – like Zentrum Automobil – recently succeeded in establishing and increasing their influence within major German car manufacturers.

Employers should be prepared

Minimal changes to ballots (adding a “smiley” to a ballot, for example) could be deemed tampering or result in void ballots, which could ultimately cause substantial costs for the Employer in having to stage new elections.

Works Council elections in Germany are serious events and Employers are advised to be aware and prepared.

Michael Magotsch has over 30 years of experience advising global companies in all aspects of German labor and employment law. His practice focuses on labor and employment issues in relation to national and cross-border restructurings, acquisitions, redundancies, and outsourcing measures. Mr. Magotsch advises C-level executives in transition or exit scenarios as well as supervisory boards in sensitive disputes with C-level executives. Read more here.