In the event that the works council election is held in a proportional representation manner on the basis of several nomination lists, the law used for the determination of elected candidates is the highest number method from d’Hondt. The Federal Labour Court has now legitimised the method (Judgement of 22.11.2017 – 7 ABR 35/16, Press Release No. 53/17).

Every candidate in the works council election must have equal chances of access. Every vote cast must carry the same weight. The candidates are elected according to the d’Hondt highest number method based on the number of votes cast. The number of votes allocated to the individual nomination lists is divided by 1, 2, 3… in numerical order. This reveals in the highest possible number of seats. The candidates are taken into consideration in accordance with the list, and in the given order.

Example of the d’Hondt highest number method:
A nine-member works council must be elected in a certain company (201 to 400 employees). Three nomination lists have been submitted.
List A has 210 votes, list B has 120 votes and list C has 38 votes. The d’Hondt highest number method leads to the following allocation of the nine seats on the works council:

Allocation of seats in teh works council

As a result,

  • The first 5 candidates from list A,
  • The first 3 candidates from list B and
  • The first candidate from list C

are elected.

The Federal Labour Court has now confirmed that the d’Hondt highest averages method is admissible for determining the allocation of seats. This method does not violate either the principle of equality as applied to the elections or the freedom of association (german Koalitionsfreiheit). Although the allocation of seats may change when other methods are used, a complete equality of votes cannot ultimately be achieved with any of the recognised procedures. Furthermore, the d’Hondt highest averages method promotes majority voting.

Consequences of the Federal Labour Court’s decision

The Federal Labour Court’s decision has come at the right time. The regular works council elections will take place throughout Germany in 2018. The electoral procedure is complicated and prone to error; therefore, it is reassuring to know that there are no uncertainties when it comes to determining the allocation of seats.

By Tobias Grambow