The Works Council and Employee Participation in Germany

The basis for the existence and activities of the works council is the Works Constitution Act (BetrVG), and for the staff council, the Federal Staff Representation Act (BPersVG) or a corresponding state law. These laws standardise which co-determination and participation rights these two bodies have about economic, personnel and social matters.

Regarding the scope of co-determination rights, Germany is one of the leading countries in the EU. However, compliance with the rules of the central body of norms, i.e. the Works Constitution Act or the Staff Representation Acts of the federal or state governments, is not enough. In many cases, it is necessary to think laterally. For example, the works council must observe the provisions 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 relate specifically to civil service law. Here, the staff council must be familiar with the Civil Service Act and the TVöD, for example.

Employees and employers, therefore, have a whole host of rules to observe to put their cooperation on a legally sound and trusting basis. Behaviour that violates these laws does occur. The relevance of criminal law should not be underestimated. Offences against the Works Constitution Act can also result in prosecution by the public prosecutor’s office and a custodial sentence or fine. This is the case, for example, if the acts specified in § 119 BetrVG are violated or if the duty of confidentiality under § 79 BetrVG is breached (cf. § 120 BetrVG).

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 five employees within the company entitled to vote, of which three 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. A choice can be made between two election procedures: the normal and the simplified election procedure in accordance with § 14a BetrVG. Before determining the election procedure, however, the number of persons entitled to vote pursuant to § 7 BetrVG must first be determined.

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 “election challenge”.

Like all elections, works councils’ elections have specific rules that they must follow to be considered valid. It is not uncommon for disputes to arise, however. Candidates who feel their rights were not respected or that the election was not carried out correctly can bring their cases to employment lawyers. Challenging the results legally requires violating essential election regulations (see § 19 Para. 1 BetrVG). Violation of essential election regulations can take place in the following examples:

• Incorrect appointment of the election committee,
• Admission of an unauthorised employee,
• Non-admission of an eligible worker,
• The election announcement and voter list are missing.

A staff council election can be contested by at least three authorised voters in the office, any of the trade unionists represented in the office or the head of the office (or their representative). In the case of a works council, at least three authorised voters, the trade union or the employer are required. The staff council election must be contested before the competent administrative court. This is only possible within the first twelve working days following the announcement of the results. The situation is similar when contesting the election of the works council (see § 19 (2) BetrVG).

An election in which there have been significant breaches of eligibility, voting rights and election procedures (cf. § 19 Para. 1 BetrVG) can be challenged before the labour court (works council) or the administrative court (staff council) by contesting the election.

If the employer contests the works council election, it must 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 seek legal advice beforehand to forecast the expected benefit as accurately as possible.

If the election challenge is successful, the court will either organise a re-election or declare the election null and void if the election is invalid. It must be noted here that the previous council loses its office once the decision becomes legally binding. Even a specially initiated new election, which has not yet been completed by the time the decision becomes final, will then be replaced by a repeat election initiated by the court.