Works council election with fewer candidates than works council seats

At a glance

• The Federal Labour Court ruled that if there are fewer candidates for a works council than there are seats to be filled, a smaller works council can still be established.
• In the case at hand, an employer with 170 employees had only three candidates for the works council election (which should have had seven members). Despite this, the Federal Labour Court confirmed the election of the smaller works council with three members.

The Federal Labour Court ruled on 24 April 2024 that the election of a works council is not prohibited in situations where fewer employees apply for a works council seat than there are works council members to be elected. Under these circumstances, a smaller works council can be formed.

Generally, the Works Constitution Act (Act) stipulates that works councils are elected in companies with, at least five employees who are permanently entitled to vote, three of whom are eligible for election. The Act also outlines a tiered system for the number of works council members based on the total employee count.

In the case which is being discussed, the employer has 170 employees. According to the tiered system, a works council for a company of this size, should consist of seven members. However, during the works council election held in Spring 2022, only three employees ran for the positions, resulting in a three-member works council. The employer deemed this election invalid, but the Federal Labour Court upheld the election results.

The court's reasoning for this decision has not yet been published. The decision is already being criticised as the reduction in the number of members in a works council is not provided for in the Act.