Employers are much more than just spectators in the regular works council elections taking place this year. Even if the works council election is to be initiated and organised by the workforce or the existing works council, the employer must both bear the costs of the election and - if necessary - provide information.
In addition, it is of course in the employer's own interest to keep an eye on the proper conduct of the works council election. In the following, we comprehensively summarise in our article the rights and obligations incumbent on the employer.
General role of the employer in the conduct of elections
1. No special (organisational) role
In principle, the employer is not assigned a special role in the election process (see Part 1 of our series of articles), and so it is – of course - permitted to influence or even obstruct the works council election. This manifests the organisational independence of the works council from the employer.
Nevertheless, this does not mean that the employer has to accept and tolerate - obvious - procedural violations. On the one hand, according to sec. 19 (1) and (2) of the Works Constitution Act (BetrVG), there is the possibility of contesting the works council election (see the coming Part 4 of our series of articles for more details), and, in the case of particularly serious and obvious violations, a judicial declaration of nullity of the works council election.
2. Determination of the works council's eligibility and the company structures
However, this right only starts after the election. Especially in cases where it is problematic who is entitled to elect the works council and how the plant ("Betrieb") is structurally composed in detail, it makes little sense to wait for the election and only seek legal protection afterwards. Moreover, this would have the consequence that the employer would be obliged to bear the costs of the - from the beginning ineffective - works council election (see under II.).
For this reason, it is recognised that employers as well as works councils and electoral committees can have a court determine at any time, i.e. even before the election, as to whether a business unit is capable of constituting a works council (sec. 18 (2) Works Constitution Act).
In principle, German law uses the term plant ("Betrieb") to designate the unit within which an employer pursues a uniform work-related purpose with his employees. In contrast, a company ("Unternehmen") is defined as an economic organisational unit which can also consist of several plants ("Betrieben").
The precise limitation of the plant ("Betrieb") is extremely relevant as the general principle is that exactly one works council can be elected per plant ("Betrieb"). However, if it is unclear, whether there is one plant (and thus one potential works council) or two plants (and thus two potential works councils) or to which unit individual parts of the plant are to be allocated, it is recommended to contest the procedure set out above..
Difficulties of demarcation are also intensified by special constellations such as independent business units and micro-enterprises. While in the past it was relatively easy to determine the assignment to a plant esp. in the manufacturing field, this is becoming increasingly difficult in the area of Work 4.0. Especially modern forms of employment such as matrix structures and mobile working make it even more difficult to determine the exact shape of a plant ("Betrieb") as employees do not work necessarily physical together anymore.
In this respect, it is quite conceivable that the introduction of mobile work and detached ties to the company have dissolved the structures to such an extent that a unitary plant no longer exists, with the consequence that several independent works councils (for mobile workers and for those working on site) have to be elected, as legally independent plants exist. This should be examined in detail in advance in each individual case. In particular, this problem should not be neglected if work structures have changed significantly in the last four years and it can therefore no longer be assumed that the organisational units and operational structures will continue to exist unchanged.
Employer's obligation to bear costs
If an election is held - irrespective of its subsequent effectiveness - the costs thereof shall be borne by the employer (sec. 20 subsection 3 sentence 1 Works Constitution Act).
1. Costs covered by the obligation to bear costs
Nevertheless, the German law only stipulates that the employer has to bear the costs of the election, but not which costs this includes in detail. For this reason, there are often disputes about the costs to be borne.
In general, the obligation to bear the costs includes all costs for the preparation and conduct of the works council election. This includes costs for material resources (costs for premises, office equipment, commentary literature and legal texts as well as the costs for ballot boxes, ballot papers, envelopes and polling booths), possible travel costs, necessary training costs, costs for missing working time and even possible lawyer's fees.
Required are also the costs of possible contestation proceedings as well as court proceedings for the clarification of disputes in the course of the election procedure, as far as the legal prosecution is wilful or obviously futile. If the person entitled to contest or the election committee deems legal representation to be necessary, these costs shall also be reimbursed.
In assessing the necessity of the costs, the election committee has a scope for judgment evaluation. Furthermore, the bearing of costs is not limited to financial reimbursement alone; it is the right and duty of the employer to ensure that the material expenditure described is available. Only if the employer does not fulfil this duty the election committee is entitled to procure the necessary items itself and to demand reimbursement of costs.
The costs to be reimbursed, however, do not include any costs of election advertising, as these are not necessary for the conduct of the works council election.
2. Procedure for disputes over the bearing of costs
If there is a dispute as to whether the costs claimed were necessary, the labour court may decide. The applicant, i.e. the election committee or the individual employee who incurred the costs, must demonstrate the necessity of the costs. In order to avoid such disputes, it is recommended to reach an agreement with the election committee in advance regarding the costs to be reimbursed and the necessary material expenses.
Information duties of the employer
Even if the employer is not responsible for the organisation of the works council election, the election committee will in many cases need information that only the employer has in order to conduct the election effectively.
1. General duty to provide information
This includes, in particular, the provision of personal information of employees that is necessary for the conduct of the election.
In particular, the election committee must draw up a list of voters for the works council election with all employees entitled to vote with their first and last names and dates of birth (sec 2 subsection 1 Electoral Regulations for Works Council Elections (Wahlordnung)). For this purpose, the employer must - as the law expressly provides - provide the electoral board with all necessary information (sec 2, subsection 2, sentence 1, Electoral Regulations). The law also expressly stipulates that this must be done immediately after posting the invitation to the election meeting in a sealed envelope. In this respect, it is also not sufficient to point out to the electoral board that it can compile the documents itself.
The electoral regulations also provide for the possibility of postal voting (sec 24 Electoral Regulations). Upon request, employees who are prevented from voting due to absence from the workplace at the time of the election shall be given or sent the election documents by the election committee. Even without an express request, the documents shall be sent by post to those employees who are already known to the election committee that they will probably not be present at the workplace at the time of the election.
The information required for this (i.e. the contact addresses of the employees concerned) shall also be made available to the election committee.
2. Limitation by data protection regulations
The names, addresses and dates of birth of the employees are indisputably personal data in the sense of German data protection rules. Pursuant to sec 26 (1) of the Federal Data protection act (BDSG), the processing and thus also the transmission of this data is permissible if this is necessary for the fulfilment of the legally regulated rights and obligations of the employees' representation.
In this respect, the transmission of first and last names as well as dates of birth is unproblematic due to the explicit legal regulation, as long as the path standardised there is adhered to.
With regard to information on addresses for sending postal voting documents, the situation is far more problematic. The law expressly provides for postal voting only as an exception in the cases mentioned. A general postal voting- without cause - and thus the request for the everybodie's addresses is thus inadmissible. In this case, the transmission of all addresses by the employer would be a violation of the provisions of the German data protection rules.
Rather, addresses should only be sent to the electoral board if the board demonstrates the employees' express request for a postal vote or if it can credibly prove that the employees in question are not expected to be present in the company at the time of the election. Even if the requirements for the necessary explanations of the election committee are not to be understood narrowly, it should be prevented that address data is sent without exception and without any specification and explanation.
The employer is therefore by no means a mere passive observer of the works council election. Rather, the employer should ideally work with the works council or the election committee to ensure that legal requirements are met.
The pandemic situation (the impact of which on works council elections will be discussed in the third part of our article series on 19 January 2022) also poses additional challenges for employers (and electoral boards). Nevertheless, there is still the possibility of contesting the works council election, which we will deal with in Part Four of our series (on 26 January 2022).