Establishment of a “smaller works council” possible

Election of a works council with fewer candidates

In the case to be decided by the Federal Labour Court (Bundesarbeitsgericht) (Federal Labour Court, decision of 24 April 2024 – 7 ABR 26/23), the employer sought a declaration that the works council election, in which only three employees stood as candidates for a works council with a total of seven members, was null and void. The employer runs a hospital with around 170 employees. According to the staggering of Section 9 Works Constitution Act (“BetrVG”), a works council of seven members is provided for this size. In the works council election initiated in spring 2022, however, only three employees stood as candidates and a works council with only three members was elected.

The view of the Federal Labour Court

The Federal Labour Court follows the view of the State Labour Court Hamburg (Ref.: 5 TaBV 7/22) and thus the rejection decided by the Labour Court Hamburg remains in place.

In the press release of the Federal Labour Court (11/24), the Federal Labour Court states that if there are not enough candidates for the works council office, this does not prevent the election of a works council.

This follows above all from the legislator’s intention, expressed in Section 1 para. 1 sentence 1 BetrVG, 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. With regard to the size of the works council, in the constellation of fewer candidates than works council seats to be filled, the next lower level (in each case) of Section 9 BetrVG must be applied until the number of candidates is sufficient for the establishment of a council with an odd number of members.

Significance for employers and future works council elections

The Federal Labour Court will provide detailed reasons when it formulates its decision, but the following is already apparent:

Section 9 BetrVG aims to ensure the efficient functioning of the works council. The legislator specifies how many employees are to be released from work for the necessary works council activities. A smaller works council is also able to carry out its work. Its activities are protected by Section 23 para. 3 BetrVG.

The number of works council members pursuant to Section 9 BetrVG is mandatory for the respective company size. Consequently, neither a collective agreement nor a works agreement may deviate from the prescribed numbers. However, the situation is different if there are not enough eligible employees in the company or employees making themselves available as candidates for election.

For the employer, the decision initially means that a works council can also be established with a smaller number of employees than provided in Section 9 BetrVG. The works council election with fewer employees than required in Section 9 BetrVG is neither void nor ineffective.

This has particular implications for employers who are electing a works council for the first time. Until the legally required number of electable employees is found, it is possible to initially deviate to a lower number on the works council. It is not necessary to motivate individual employees to be nominated for election in order to reach the required minimum size.

The analogue application of Section 11 BetrVG also does not result in a contradiction of judgement with Section 13 para. 2 no. 2 BetrVG. According to this, a new election must be held if the total number of works council members has fallen below the prescribed number of works council members after all substitute members have taken their place. However, this case cannot be compared with a situation where there are too few works council members from the beginning. In the case regulated by Section 13 para. 2 no. 2 BetrVG, a new election makes sense because there is a possibility that enough new candidates will be available for the works council office.

However, if there is a lack of a sufficient number of candidates from the beginning, this is highly unlikely to change even in the case of a new election.

The fact that the existence of a works council is more important to the legislator than compliance with the size stipulated in Section 9 BetrVG is also expressed by the law in the cases of Section 13 para. 2 no. 1 BetrVG, as the previous "too small" works council remains in place until a new election is held in accordance with Section 21 sentence 5 BetrVG.