Following the right procedure is important Setting up a works council: How does it work?

Electing a works council is a democratic right of employees in Germany: “In companies with, as a rule, at least five permanent employees eligible to vote, three of whom are eligible for election, works councils are elected.” This is stated in Section 1 of the Works Constitution Act (BetrVG)—the “constitution” governing the relationship between employers and employees in companies.

Millions of employees elect new works councils every four years on a regular basis. However, a first-time works council election in companies that do not yet have a works council is possible at any time.

A works council is elected if there are at least five adult employees are employed at the company. Three of these five employees must have been working at the company for at least half a year. This provision is found inSection 1 of the Works Constitution Act. The vast majority of employers do not obstruct works council elections but allow their employees to exercise their democratic rights within the company as well.

The employer may not prohibit or obstruct works council elections. Otherwise, the employer is liable to prosecution under Section 119 of the Works Constitution Act. Although this is a serious offense, violations are not always consistently prosecuted by the criminal justice system, often due to a lack of specialization in works constitution law. Nevertheless, this can result in heavy fines.

It is better and safer not to rely on criminal courts, but to approach works council elections in a legally sound manner together with your colleagues and IG Metall as a competent partner.

Better and Safer Work with a Works Council

In companies with a works council, jobs are more secure and working conditions are better. The works council has legally guaranteed rights to co-determination and information under the Works Constitution Act (BetrVG). It represents the interests of employees and advocates for their rights. It monitors compliance with laws and regulations and negotiates works agreements with the employer on an equal footing. The works council has a say in matters such as the distribution of working hours, shifts, and breaks. It can object to individual personnel decisions or refuse to approve terminations.
 

Special Protection Against Dismissal for Works Council Members

Unlike regular employees, works council members enjoy special protection against termination — under Section 15 of the Unfair Dismissal Protection Act and Section 103 of the Works Constitution Act (BetrVG). Without a works council, the employer faces few restrictions. In the event of a plant closure, for example, there is no reconciliation of interests or social plan with severance payments without a works council. But it doesn’t always have to be about losing one’s job. There are countless issues that not everyone can negotiate and enforce on their own with the employer—such as the scheduling of work hours, vacation planning, or the organization of work.
 

If the Boss Is Against a Works Council

You have every right to elect a works council. However, the path to a works council election can present some obstacles. For example, if the boss finds out about the plans too early—say, before the official election notice is posted at the workplace—things can get dangerous. It’s not uncommon for the “ringleaders” to be fired on flimsy grounds. Employers often even hire law firms that specialize in targeting works council members and union activists—so-called“union busters.” They make life difficult for elected works council members or try to prevent their election.

At least the protections provided by the Works Council Modernization Act were strengthened in June 2021. Employees who are preparing for a works council election are now also protected from termination.

Preparations for the Works Council Election

To be on the safe side, it’s important to talk about this only with trusted coworkers at the beginning —preferably outside the workplace. One option is to post the election notice—along with an invitation to elect an election committee—to all employees at the workplace, signed by three employees eligible to vote as election initiators. As soon as the official election notice with the three signatures is posted, these three employees are already specially protected against dismissal.

However, it’s much safer to involve IG Metall. A union represented at the workplace is also authorized to post the election notice. And IG Metall is well-versed in election regulations—and has experts and lawyers on hand.

The election process is complicated. The formal organization must be correct. Those who are unfamiliar with the process can easily make mistakes that, in the worst case, could even invalidate the entire election. In that case, protection against termination is also lost.

Seek help from IG Metall

Therefore: Be sure to seek support from local IG Metall office . They know the election procedure inside and out and can handle everything. The local IG Metall office will advise you confidentially and support the election committees and bodies until the elections are over and their duties are completed. In addition, union members have legal protection, for example, if the employer tries to intimidate or undermine committed union members.

At the election meeting, the election committee is then elected, which will prepare for the actual works council election in the following weeks. If the election meeting did not take place despite an invitation, or if no election committee was elected there, the labor court may also appoint an election committee.

Conducting Elections Correctly and Safely

Great care is required when conducting works council elections: election notices, accurate voter lists, ballots, absentee voting, and candidate slates—all of this must be handled properly. That’s why the same principle applies here: things run more smoothly and reliably with IG Metall. A tip: It is advisable for those who initiate the election to also serve as members of the election committee and, if necessary, even run as candidates for the works council, since their protection against dismissal is limited. Alternatively, the election committee can also be appointed by the general works council or group works council, if one exists.

Depending on the size of the company, the election committee’s preparation for the works council election takes:

• One week—for the simplified election procedure in companies with up to 100 employees 
• Also one week—or optionally up to twelve weeks—for companies with 101 to 200 employees
• In larger companies with more than 200 employees, the period is mandatory twelve weeks.

Once preparations are complete, the works council is then elected.

The size of the works council depends on the number of employees. In companies with 5 to 20 employees eligible to vote, the works council consists of one person; with 21 to 50 eligible employees, it consists of 3 members; with 51 to 100 employees, it consists of 5 members; and so on.

The term of office for the new works council is four years. Works council members have the right to resign. In such cases, alternates for the works council are also elected during the election. If necessary, a new election may be held early.