Guide for substitute members

Guide for substitute members of the works council

As a substitute member of the works council, you play an important but often overlooked role. When you take over, you face the challenge of quickly familiarizing yourself with current issues and performing your duties competently. Our guide provides comprehensive information about your rights, duties, and responsibilities so that you can start your term well prepared and make a valuable contribution to the works council.

Discover our offers for substitute members

When substitute members move up to the front row

During the course of a works council term, it often happens that a works council member is temporarily unable to perform their duties, e.g. due to illness or vacation. It can also happen that a works council member resigns from office and thus leaves the works council. To ensure that the works council can continue to operate with the statutory minimum number of members, there are substitute members. These members take over the duties of a member who is temporarily unable to perform their duties or who has permanently left the works council. In these cases, we refer to the appointment of a substitute member. Substitute members of the works council are individuals who received votes in the works council election but were not directly elected as full members of the works council. Due to their position on the election list or the distribution of votes, they were not considered as full members. Due to the vacancy, they now become key figures in the committee and move up to the front row.

This opportunity brings with it entirely new challenges and issues, which we have been successfully addressing for years as an experienced and reliable partner for works councils. With in-depth knowledge and many years of expertise, we are at your side every step of the way – from initial training to practical support with complex decisions. Our goal is to support you in

This opportunity brings with it entirely new challenges and questions, which we have been successfully addressing for years as an experienced and reliable partner for works councils. With in-depth knowledge and many years of expertise, we are at your side every step of the way—from initial training to practical support with complex decisions. Our goal is to support you in performing your tasks efficiently and in compliance with the law, so that you can represent the interests of your workforce in a strong and well-prepared manner. You can count on us when it comes to tailor-made solutions and sustainable support.

Discover our offers for substitute members

  • Who is a substitute member?

  • Appointment of a substitute member

  • When does a substitute member permanently join the works council?

  • When does a substitute member temporarily join the works council?

  • Which substitute member will take their place?

  • Special features of protection against dismissal

  • works council training

  • Duties of the replacement member who has taken the place

  • Rights of the replacement works council member

Our offer for substitute members and successors

New to the works council? With our free initial assessment, we determine your training needs so that you are optimally prepared. Our online annual course provides the necessary basic knowledge for legally compliant works council work. In addition, we offer a free networking meeting for successors and substitute members to inform you about your specific rights and obligations and to establish valuable contacts.

We discuss your training needs

Are you new to the works council or will you be joining soon and want to know which training courses are relevant for you? With our free initial assessment, we offer you a detailed analysis of which training courses are important for you as a new or incoming member of the works council. Register now for your free appointment and find out which knowledge will best prepare you for your new role.

Book an appointment now for a free initial assessment

The online annual course for new and replacement members of the works council

New to the works council? CampusArbeitswelt provides works council members with the basic knowledge they need to approach their work effectively and in compliance with the law. Building on this foundation, you can develop into a key position on the council in our special seminars and become indispensable to your company!

Learn more about substitute members or alternates

Free networking event: “Substitutes and alternate members”

Substitute members of the works council always play a special role. They can take over temporarily or permanently after a regular works council member leaves. In this network meeting, we would like to discuss the tasks, duties, and rights of substitute members.

Register now for the networking event free of charge.

Good to know – Find answers to your questions

Are you new to the works council as a replacement or substitute member and looking for answers to the most important questions? We have put together a series of short videos that offer you exactly that. Whether it's about your rights and obligations or practical tips for getting started, here you will find the information you need to feel confident and well prepared in your new role.

What happens if there is no substitute member for the works council?

When do substitute members have the right to inspect works council documents and files?

Does the works council have to appoint substitute members for the election committee?

FAQ

Are you new to the works council, either as a replacement or substitute member, and wondering what to expect? Find out what tasks await you in your new role, what rights and obligations are associated with it, and what training courses will best prepare you for your area of responsibility. Our FAQs provide clear answers so that you can start your role well-informed and confident.

When does a substitute member join the works council?

Substitute members automatically replace regular works council members who have left permanently or are temporarily unable to perform their duties (§ 25 (1) BetrVG). No resolution by the committee is required.

Everything about the immediate information

In accordance with the proper management of the works council, the chair of the works council is obliged to inform the substitute member immediately of any resignation or incapacity. He or she must invite the substitute member to the next works council meeting.

As a rule, the substitute member learns of his or her current entry into the works council through the invitation. The chairperson of the works council is responsible for issuing the invitation. As a rule, the member concerned informs the chairperson himself or herself of his or her incapacity to attend so that the chairperson can take action.

Automatic replacement - What you need to know

The substitute member automatically joins the works council and is entitled to participate in works council meetings. If a substitute member is incorrectly designated as a replacement, or if the responsible substitute member is not invited to the meeting or is denied participation in the meeting, the substitute member, like any other works council member, may initiate corresponding proceedings before the labor court.

There may also be other consequences: a works council decision that is made with an incorrect composition is invalid if the works council chairperson was aware of the impediment and nevertheless did not invite the substitute member.

Everything you need to know about the resignation and prevention of a works council member

The cases in which a works council member leaves the council correspond to the reasons for termination of membership specified in Section 24 Nos. 2 to 6 of the Works Constitution Act (BetrVG). The reason for the resignation is irrelevant. A regular works council member may be temporarily prevented from attending for various reasons:
– for factual reasons (vacation, illness, business trip, time off work, etc.)
– for legal reasons (suspension of membership, parental leave, call-up for military service)
– due to personal circumstances

Temporary incapacity does not apply if a works council member is absent from a meeting for personal reasons, e.g. due to annoyance. In the event of incapacity to work due to illness, a works council member is always prevented from performing their works council duties.

Rights of the substitute member

The law stipulates how the replacement member is to be appointed.
Upon joining, the replacement member becomes a full member of the works council with all the rights and obligations of a full member, but does not take on any special duties of the works council member who has left or is unable to attend.

Special protection against dismissal for the substitute member

Substitute members are protected by law. As long as the substitute member has taken over the position, they cannot be dismissed under ordinary circumstances (Section 15 (1) KSchG). However, protection against ordinary dismissal continues beyond the period of substitution as a form of extended protection against dismissal, for up to one year.

Who is a substitute member?

Substitute members are candidates who were not directly elected to the works council in the works council election because they did not receive enough votes. However, the prerequisite for substitute membership is that the candidate must have received at least one vote. Candidates who did not receive a single vote are not considered substitute members. The number of substitute members is not specified by law. There is neither a prescribed maximum limit nor a minimum number. It is even possible that there are no substitute members at all. The number is determined solely by the number of candidates who received at least one vote.

Call now to clarify any questions you may have: 0211/96294060
Send us your question via email to info@campusarbeitswelt.de

The replacement of a substitute member

When a substitute member joins the works council, there are two different scenarios:

  1. Permanent replacement when a works council member leaves: If a works council member leaves before the end of their term of office, a substitute member permanently takes their place (Section 25 (1) sentence 1 BetrVG). This substitute member becomes a full member of the works council and assumes all rights, duties, and responsibilities as if they had been originally elected to the works council.
  2. Temporary replacement in the event of temporary incapacity of a works council member: If a works council member is only temporarily unable to perform their duties, a substitute member takes their place for this limited period (Section 25 (1) sentence 2 BetrVG). During this period, the substitute member has the same rights and obligations as a regular works council member. They must be invited to all works council meetings, can participate in votes, and also take part in discussions with the employer, for example. Important to know: A substitute member who steps in temporarily or permanently only takes on the general tasks of a works council member. Special functions or offices held by the originally elected works council member remain vacant until a corresponding new election or replacement is held. This applies in particular to positions on the works committee or exemptions under Section 38 of the Works Constitution Act (BetrVG), which are not automatically transferred to the substitute member. These special tasks require a special election or a special resolution by the works council in order to be filled.

Call now to clarify any questions you may have: 0211/96294060
Send us your question via email to info@campusarbeitswelt.de

Permanent replacement of a substitute member on the works council

A substitute member permanently joins the works council if a works council member leaves the works council prematurely before the end of their regular term of office. The most common reasons for premature departure are:

  • Resignation: The works council member resigns from office.
  • Termination of employment: This can occur through dismissal or the natural expiry of the employment relationship.
  • Loss of passive voting rights: A works council member loses their passive voting rights, e.g. by moving to another company.
  • Exclusion from the works council: This occurs in the event of a gross breach of duty by the works council member.

In these cases, the substitute member permanently assumes the role of the elected works council member and is fully integrated into the works council.

Call now to clarify any questions you may have: 0211/96294060
Send us your question via email to info@campusarbeitswelt.de

Temporary replacement of a member of the works council

A substitute member temporarily takes over the duties of a works council member if the latter is temporarily prevented from performing their duties for specific reasons (Section 25 (1) sentence 2 BetrVG). A works council member is prevented from performing their duties if they cannot, may not, or must not perform their duties for certain reasons. Prevention due to the “impossibility” of performing duties A works council member is prevented from performing their duties if they are objectively unable to do so. In such cases, a substitute member automatically takes over the duties of the member who is prevented from performing their duties. Examples of this are:

  • Business trip: If a member is unable to return in time for the works council meeting due to a business trip.

Prevention due to exemption from work obligations
A works council member who is exempt from their work obligations is generally also not obliged to perform their works council duties. This applies in particular to the following cases:

  • Vacation: During vacation, a substitute member takes over the duties of the works council member for the entire duration of the vacation.
  • Parental leave: Here, too, the substitute member automatically takes over for the duration of the parental leave.

In these cases, the substitution takes place without formal notification. However, the works council member may attend works council meetings despite being on leave if they wish to do so. In this case, they must notify the works council chairperson and the substitute member does not attend the meeting while the regular member is participating.

Prevention due to professional or private commitments
A works council member may also be prevented from attending due to professional or private commitments. In such situations, the member must weigh up for themselves which commitment takes priority. During this time, a substitute member takes over the duties of the works council member until they are available again.

Prevention due to a conflict of interest
A works council member is temporarily excluded if they are affected by a decision of the works council itself. This is particularly the case when it comes to personal matters, such as:

  • Termination of employment
  • Transfer
  • Reassignment
  • Exclusion from the works council

In these cases, the member concerned may not participate in the deliberations or the vote. Instead, the substitute member takes their place.

Call now to clarify any questions you may have: 0211/96294060
Send us your question via email to info@campusarbeitswelt.de

Who's next?

If several substitute members are available, a decision must be made as to which substitute member will take over, either permanently or temporarily. The type of works council election plays a decisive role here. It depends on whether the works council election was conducted as a majority vote (individual vote) or as a proportional representation vote (list vote) (Section 25 (2) BetrVG).

Replacement in the case of majority voting (individual voting)
If the works council election was conducted as a majority vote, in which voters cast their votes for individual candidates, the substitute member who received the most votes from the unelected candidates in the election takes their place (Section 25 (2) sentence 3 BetrVG).

A special case arises if the replacement would result in the minority gender no longer being adequately represented on the works council. In this case, the substitute member of the minority gender with the highest number of votes takes the place in order to achieve gender parity in accordance with Section 15 (2) BetrVG.

Replacement in proportional representation (list voting)
If the works council election was conducted as a proportional representation election, in which voters cast their votes for lists rather than for individual persons, the substitute member from the same list from which the works council member to be replaced came shall take their place (Section 25 (2) sentence 1 BetrVG). The order of succession is determined by the position on the list. Even in proportional representation, care must be taken to ensure that the minority gender remains adequately represented (Section 15 (2) BetrVG). If this is not the case and there is no longer a substitute member of the minority gender available on the list in question, the so-called “list jumping” applies. In this case, the next substitute member is elected from the list that was next in line for a seat on the works council according to the number of votes.

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Rights of substitute members

A substitute member who permanently replaces a member who has left the works council has exactly the same rights as a member who was originally elected to the works council. But what applies to substitute members who only temporarily replace a works council member who is unable to attend?

During the period of representation, a substitute member generally has the same rights as a regular works council member. These include in particular:

  • Entitlement to time off work: The substitute member is entitled to paid time off work during working hours to carry out works council activities.
  • Entitlement to time off in lieu: If works council activities are carried out outside regular working hours, the substitute member is entitled to corresponding time off in lieu.
  • Right of inspection: The substitute member has the right to inspect the works council documents in order to be able to perform their duties properly.
  • Protection against dismissal: The substitute member is protected against ordinary dismissal.
  • Protection against disruption or obstruction: The substitute member must not be obstructed or disrupted in their works council work.
  • Protection against discrimination: The substitute member must not be discriminated against because of their works council activities.
  • Under certain conditions, substitute members may also participate in training courses that prepare them for their duties on the works council.

Like regular members, substitute members may resign from office at any time. Resignation terminates membership as a substitute member.

Call now to clarify any questions you may have: 0211/96294060
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Special protection against dismissal for substitute members of the works council

Works council members are protected against ordinary dismissal by their employer. The employer may only dismiss them for good cause, which requires the consent of the works council. This special protection against dismissal also applies to substitute members as soon as they temporarily or permanently join the works council. Regardless of whether the substitute member actually performs works council duties during this period, they enjoy full protection against dismissal for the duration of their replacement period.

As soon as the substitute member leaves the works council, this comprehensive protection against dismissal also ends. However, retroactive protection against dismissal remains in place for a maximum of one year after the end of the replacement period. During this time, ordinary dismissal is not possible. However, the employer no longer has to obtain the works council's consent for the dismissal.

However, the subsequent protection against dismissal only applies if the substitute member was active in the works council during the period of succession, e.g., participated in a meeting. If they did not perform any works council activities during the period of representation, this protection does not apply.

Call now to clarify any questions you may have: 0211/96294060
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right to training

In order to perform their duties properly, works council members require specialized knowledge, particularly in the field of labor and works constitution law. For this reason, every works council member is entitled to training at the employer's expense. This training serves to impart the specialist knowledge required for works council work.

Even if a substitute member temporarily joins the works council, it is important for them to have the relevant knowledge in order to perform their duties. During the period of substitution, the substitute member must perform the duties of the works council on their own responsibility, which requires a basic knowledge of works constitution law. However, unlike regular works council members, substitute members are not entitled to participate in basic training courses.

However, the works council may decide that a substitute member may participate in such training at the employer's expense if it is expected that they will be called upon frequently. This applies in particular to the first substitute members on the election lists, who often play a role in larger works council committees, as the likelihood of them being called upon increases.

In addition, the works council may decide that a substitute member should participate in training if it is foreseeable that they will have to fill in for a longer period of time, e.g., in the event of prolonged illness of a regular works council member. In this case, training is useful in order to optimally prepare the substitute member for the long-term performance of their duties.

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Call now to clarify any questions you may have: 0211/96294060
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Duties of the replacement member who has taken the place

If a substitute member replaces a works council member who is (temporarily) unable to attend, they not only assume the rights of that member, but also all the duties of a regular works council member. One of the most important duties is participation in works council meetings. In addition, the substitute member is subject to the same confidentiality and secrecy obligations as all other works council members. These obligations extend to all confidential information that becomes known in the course of works council work.

If a substitute member violates their duties, they can be excluded from the group of substitute members by court order. This is done by the labor court, as can also happen to a regular works council member in the event of a gross violation of their duties.

Call now to clarify any questions you may have: 0211/96294060
Send us your question via email to info@campusarbeitswelt.de

Do you still have questions?

We are happy to help you and look forward to hearing from you.

Call now for more information: 0211/96294060
Email to: info@campusarbeitswelt.de