The basis for the existence and activity of the works council is the German Works Constitution Act and, in the case of the staff council, the Federal Staff Representation Act (BPersVG) or a corresponding land law. These laws standardise the co-determination and participation rights of these two bodies with regard to economic, personnel or social matters.

In terms of the extent of co-determination rights, Germany is at the forefront compared to other EU states. However, compliance with the rules of the central normative structure, i.e. the Works Constitution Act or the Staff Representation Laws of the Federal or the state, is not enough. In many cases it is necessary to think outside the box. For example, the works council has to observe the regulations of the Working Hours Act, the Federal Leave Act, the Maternity Protection Act, the Youth Protection Act and the Vocational Training Act.

Staff councils, however, have to answer questions that specifically concern civil service law. The staff council must be familiar with the Civil Service Act and the TVöD (Tarifvertrag für den öffentlichen Dienst – Collective agreement for the public service), for example.

Employees and employers thus have a lot to consider in order to put their cooperation on a legally solid and trusting basis.

Works councils exist from the smallest works council to the general works council (§ 47 BetrVG). Furthermore, company-specific rules modify such works councils in case of an existing collective agreement (per § 3 BetrVG). Thus, work councils can be established in even very small companies. The requirement for establishing a work council is that there need to be 5 employees within the company entitled to vote, of which 3 are eligible for election. This is per § 1 Abs. 1 BetrVG. However, personnel representations must be created as part of the council’s creation.

The standardized course of the election is regulated in great detail. Formal aspects have to be taken into account as well as the action of the right initiators. Moreover, special attention must always be paid to who is considered “eligible for election” and who is considered “entitled to vote”. Work councils should ensure that the correct procedures are followed when it comes to these matters. Not doing so can lead to potential legal difficulties and disputes within the company.

Particularly when a company/office has to deal with the establishment of an employee representation for the first time, it can happen very quickly that specifications regarding the election are not sufficiently precise or are not observed at all. Receiving mentoring from those experienced when it comes to running works councils is recommended if unsure of how to proceed with such a council.

The conducted election can then be challenged by means of the so-called election challenge.

Like all elections, works councils’ elections have certain rules that they must follow to be considered valid. It is not uncommon for disputes to arise, however. Candidates who feel that their rights were not respected or that the election was not carried out correctly can bring their cases to employment lawyers. Dissatisfaction within the works council can lead to the council not being able to complete its important work. Therefore, there must be rules in place when it comes to elections. Violation of essential election regulations can take place in the following examples:

• Incorrect appointment of the election committee
• Admission of an unauthorised worker
• non-admission of an eligible worker
• Election announcement and voter list are missing

A staff council election may be contested by at least 3 eligible voters in the office; any trade unionist represented in the office or the head of the office (or his representative). A works council requires at least 3 eligible voters, the trade union or the employer.

For an election to be deemed to have been influenced by an error, it must be shown that an error occurred and that it influenced the election. In addition, this error must not have been corrected or be correctable and must have influenced the election result. The court will then determine the invalidity or validity of the works council election.

An election in which there have been significant violations of eligibility, voting rights and election procedures can be challenged before the Labour Court (Works Council) or the Administrative Court (Staff Council) by way of contesting the election.

If the employer contests the works council election, that employer has to bear the costs, regardless of the outcome of the proceedings. This also includes the costs of the opposing legal counsel. Due to the high-cost risk, the employer is therefore well advised to forecast the expected benefit as precisely as possible by obtaining legal advice beforehand.

The deadline for contesting the election is 12 working days from the announcement of the election results.

If the election challenge is successful, the court, if the election is invalid, either orders re-elections or declares the election null and void. Here it must be noted that with the legal force of the decision, the previous council loses its office. Even a specially initiated new election, which has not yet been completed by the time the decision becomes legally binding, is then replaced by the court-initiated repeat election.