Germany: The Works Council Can Have Fewer Members

Background

The employer runs a clinic with a regular workforce of 170 employees. With this company size, Section 9 of the Works Constitution Act provides for a Works Council consisting of seven members. In the Works Council election initiated in 2022, only three employees stood as candidates, and a Works Council with three members was ultimately elected.

From the employer’s point of view, the election of only three members was void.

 

Key Issues

The Federal Labour Court ruled that the Works Council election was lawful. Therefore, a smaller Works Council is also permissible.

This means that the election of a Works Council is not affected by the fact that there are not enough candidates for the position of Works Council members. The court based this on the intention of the legislator, which stipulated in Section 1 (1) sentence 1 of the Works Constitution Act that works councils are elected in companies with, as a rule, at least five employees who are permanently entitled to vote, three of whom are eligible for election.

The Federal Labour Court stated that in a situation where there are fewer candidates than works council seats to be filled, the size of the works council must be reduced to the next lower level (in the particular case) of Section 9 of the Works Constitution Act. In the opinion of the court, the next lower level of Section 9 of the Works Constitution Act must be used until the number of candidates is sufficient to form a works council with an uneven number of members.

Practical Point

• The decision confirms that a works council election is lawful even if fewer candidates run for the council than there are seats available. This provides clarity and legal certainty for companies where it is challenging to find enough candidates.