This is how unions and works councils think

With a traffic light coalition, there could soon be new regulations for more women in leadership positions. Before the election, the SPD and the Greens promised to expand the quota of women for supervisory boards and executive boards at listed or co-determined companies.

The FDP does not advocate fixed quotas, but for voluntary commitments. But the Liberals also want to “ensure that more women get into leadership positions”, as stated in the joint exploratory paper of the three parties.

That would not only increase the pressure for the company leaders. New regulations for the supervisory board are also likely to cause problems for trade unions and works councils.

Accordingly, in the first ranking of the largest listed companies in 2011, the proportion of women on the entire supervisory board was only 3.1 percent on the shareholder side and 6.9 percent on the employee side.

Share of women in management positions: “Quite terrifying”

Today, however, the employee side, with an average proportion of women on the entire supervisory board of 14.9 percent, is far behind the shareholder side with 18.8 percent. Fidar President Monika Schulz-Strelow thinks the development is “pretty frightening”.

And it is not a private sector problem. Fidar’s “Public Women on Board Index”, for example, currently rates the situation on the employee bench for mixed public investments as “extremely critical”. The proportion of women on the employee side fell by almost 15 percentage points to 21.9 percent between 2015 and this year.

Since the beginning of 2016, listed companies with equal co-determination have had to meet a statutory gender quota of at least 30 percent for the underrepresented gender – usually women – on the supervisory body.

In concrete terms, this means: Any vacant positions on the Supervisory Board must be filled with women until at least 30 percent of women have been reached. The codetermination ensures that the Supervisory Board is made up of half of the shareholder and employee representatives.

According to Fidar, it must be borne in mind that the values ​​are only comparable to a limited extent, as some of the companies examined do not have an employee bench at all – the average values ​​are therefore lower when calculating the overall supervisory board. Nevertheless, the development on the employee side is not keeping pace with that on the shareholder side.

Current data from the Federal Ministry of Justice paint a different picture: In the employee banks, the proportion of women on the supervisory board is significantly higher at 26.4 percent than in the shareholder banks (19.4 percent).

However, it should be taken into account here that some of the companies have not assigned the supervisory boards to a gender or to a bank affiliation.

There are hardly any women who have been on the supervisory board for a long time

There are still only a few exemplary women such as Manuela Rousseau. She has been a member of the Supervisory Board of Beiersdorf AG for the employee side since 1999. She has been Deputy Chairwoman of the Supervisory Board since 2019. Rousseau himself speaks of a “career full of breaks” and of self-doubt. Nevertheless, she is successful – also because she was able to assert herself as a candidate for the supervisory board on the works council.

But what happens in an emergency? There is only one sanction mechanism in the law on the quota of women on supervisory boards: the empty chair. If the quota is not met in the event of a new appointment and no woman can be found for a position that becomes vacant, the chair must remain vacant.

So far, this has only happened once, namely in 2018 at the bathroom and ceramics manufacturer Villeroy und Boch. And here the workers’ side had missed the target of at least two women on the supervisory body. “Except for one woman, only men got the corresponding number of votes,” the company explained to the Handelsblatt at the time.

The chair remained empty for about three months. Then a replacement was appointed by a court: Sabine Süpke was appointed as the union representative. The IG BCE functionary had previously been a member of the Schering Supervisory Board for ten years – and is now still on the Supervisory Board of Villeroy and Boch.

Stock corporation law expert Katharina Stüber from the commercial law firm Allen & Overy explains: “The law provides for the so-called principle of total compliance as a rule for the fixed gender quota.” Thus, the legal requirements are basically to be fulfilled by the supervisory board in its entirety, i.e. regardless of the allocation to the shareholders – or on the employee side.

Together or separately?

“If there are more women on the shareholder side, for example, the employee side can provide fewer women as long as a total of 30 percent is achieved,” says Stüber.

However, the law grants both the shareholders and the employees the opportunity to object to this overall compliance before each election to the chairman of the supervisory board.

According to legal expert Stüber, an objection declared by a “bank” means that the fixed gender quota has to be met by each bank separately, i.e. by the shareholders and employees on the supervisory board. This is called “Separate Fulfillment”. After a contradiction, each bank must therefore meet the 30 percent gender quota for itself. Information on this can partly be found in the management reports of the individual companies.

The commercial law firm Allen & Overy recently found in a study on “gender diversity” in DAX and MDax companies that, for example, at Adidas AG, the fixed gender quota on the supervisory board should be fulfilled separately and that both the shareholder and the Employees have made use of the legal option to object to overall performance.

According to this study, ten of the MDax companies have reported that an objection has been lodged against overall compliance. “However, there are only a few cases where explanations of the background to the separate fulfillment can be found,” explains lawyer Stüber. It could mean that the issue of “more women in management positions” is at least not being approached by mutual agreement.

Election of employee representatives is complicated

Politicians are hoping for parity – also on the part of the unions and works councils. The Federal Ministry of Justice responsible for the women’s quota informed Christine Lambrecht (SPD) on request: “Of course it is our goal that the proportion of women on the supervisory board, on both the shareholder and employee side, develops into approximately equal participation.”

The ministry points out, however, that the employee representatives on the supervisory board are determined by free elections of the employees. In fact, the process is complicated as there are several separate ballots for union representatives, company employees and executives.

However, the unions had asked the ministry to extend the statutory minimum quota on the supervisory board to include other companies. “We are therefore of the firm conviction that increasing the proportion of women on the supervisory board is also a major concern of the trade unions,” it continues.

This is indeed the case: As early as 2011, IG Metall set itself the goal of filling 30 percent of supervisory board mandates with women, explains the second chairwoman of the largest German trade union, Christiane Benner. “On the employee side, the proportion of women on supervisory boards has risen steadily since then.”

Overall, it is now at IG Metall at 29.22 percent: For the internal supervisory board members – i.e. those who belong to the company – it is 25.1 percent, for the external supervisory board members – who are proposed by the union – even 35.6 percent.

“Unions don’t show a clear edge”

Fidar President Schulz-Strelow, who is a member of the supervisory board herself, still sees some catching up to do: “Politicians cannot approach the employee side with specifications because the representatives are determined by democratic elections.” A woman must therefore be on the list of the works council or by to be borne by the union.

“But the unions themselves are not showing a clear edge,” criticized Schulz-Strelow. “With a few exceptions, such as IG Metall, they do not make a clear commitment that the representatives for control bodies are made up of equal numbers.” It is about power and influence, in the case of DAX companies about highly paid positions. “The works councils also lack a clear commitment to more women in management positions,” complains the Fidar President.

IG Metall Vice President Benner hopes for progress from the future government: “The exploratory paper of the traffic light offers good starting points for more equality.” However, anyone who wants more women to take up management positions must extend the requirements for binding quotas to more companies and promote women anchored at all levels of the company.

More: Courageously into the future: 100 women who move Germany.

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