Industrial action law (Germany)
With a few exceptions, German industrial action law is essentially judge law , i.e. it is read from court rulings about the admissibility of industrial action. These are based on the principle of the admissibility of industrial disputes, which is based on the guarantee of activity of the trade unions and employers' associations guaranteed by the freedom of association in Basic Law (GG). An express right to industrial action is not mentioned there either. Instead, the authors of the constitution simply wanted to prevent trade union bans and guarantee workers and employers the right to form cartels in the labor market to assert their interests.
According to the case law of the Federal Constitutional Court, the right to freedom of association is dependent on the detailed elaboration by the legislature. However, there is still no law of its own. According to the case law of the Federal Labor Court, the parties to the collective bargaining agreement are directly bound by Article 9 (3) of the Basic Law. Gamillscheg and others therefore argue that, with the parties to the collective bargaining agreement, the citizen is faced with a power comparable to the state, from which he must be protected in the same way as the state itself.
Strike and Lockout
During a labor dispute, workers can go on strike, that is, they stop working in order to force the employer to agree to a collective agreement. In the past, the employer could respond by locking out all workers, so that even the non-striking workers (strike breakers) could not work and consequently received no wages and so took sides against the strikers. Extremely high standards are now set for the proportionality of the lockout, which has contributed to the fact that the lockout has almost not occurred since 1985. The strike is practically the only means of industrial action. The so-called attack lockout, with which an employer begins the industrial action himself, has not been encountered since 1928.
Legal consequence of the labor dispute
In 1955, the Grand Senate of the Federal Labor Court ruled that the strike was “undesirable”, but that it no longer had to be terminated - as it used to be - before the strike could take place without legal consequences. Rather, the employment contracts would be "suspended", that is, put out of force, during the strike. So they are pending ineffective until further notice. The legal nature of the strike is therefore a sovereign intervention in the institute of contract law, which is limited in time, place and subject to the specific collective bargaining conflict. This decision is considered to be fundamental to all German labor dispute law because it freed the strike from the stigma of unlawful acts.
Participation in a strike therefore does not constitute a violation of the employment contract for the striking employee. Instead, the employment relationship is suspended during the strike, so the employees do not have to perform any work and the employer does not have to pay any wages during the strike. Therefore, measures by the entrepreneur are prohibited and strikers may not be dismissed either during or after the strike because of participation in the strike.
Strikers are not entitled to payments from the Federal Employment Agency. Only unionized workers receive strike support from the unions for the duration of the strike, which for example at Verdi amounts to 2.2 to 2.5 times their monthly membership fee per strike day, depending on membership.
Parties to the industrial action
Industrial disputes may only be waged by the collective bargaining parties, i.e. employers and their associations on the one hand and the trade unions on the other. So-called wildcat strikes by workforces that are conducted without union authorization are illegal and can lead to the striking workers being dismissed without notice .
However, it is not the union itself that has the right to strike, but the workforce. Any worker may therefore take part in a strike called for by a union. It doesn't matter whether he is a union member or not. Trainees are also allowed to strike for collective bargaining claims that affect them.
The lockout also always affects the entire workforce. The Federal Labor Court has declared the selective lockout, which would only affect union members, to be inadmissible.
However, not every union has to be ready to strike. In 1964, the Federal Constitutional Court did not deny the Association of Catholic Housemaids the ability to pay tariffs, although they showed no apparent interest in strikes. The sensible functioning of the collective bargaining autonomy is - at least with the housemaids - not dependent on the readiness for labor disputes.
Also councils are not entitled to fly of labor disputes. They and their members are not allowed to engage in industrial action in this capacity, for example the works council office is not allowed to be used as a strike center. On the other hand, works council members may participate in industrial action in their capacity as employees and union members.
If a collective agreement applies to a branch of the economy ( area collective agreement ), the parties to the collective bargaining agreement are the responsible union and the employers' association. In the case of a collective bargaining agreement for a single company (company collective bargaining agreement ), the union negotiates with management in cooperation with company union representatives - usually unionized works council members.
Permissible industrial action objectives
Industrial action must pursue goals that can be regulated in a collective agreement. Strikes with political goals or to show solidarity are therefore illegal.
Prohibition of excess
In Germany, industrial action is only permitted if the prohibition of excesses is observed. The strike is therefore not permitted in principle, but prohibited in principle. This means that the industrial action must be necessary, i.e. that milder means have to be exhausted according to the ultima-ratio principle, and that it has to be proportionate to its purpose . This follows from a ruling by the Grand Senate of the Federal Labor Court in 1971. The prohibition of excess is generally only observed when previous negotiating efforts have been exhausted and have failed or at least threatened to fail with a high degree of probability. Strikes are therefore only permitted in exceptional cases and only when there is no other way out of avoiding the collective stoppage of work.
Under certain circumstances, strikes are ruled out by a collectively agreed peace obligation. For the term of the collective agreement, the relative peace obligation prohibits combat measures to enforce disputes that the current collective agreement already regulates. The absolute peace obligation, on the other hand, imposes an unconditional ban on fighting for a certain period of time, which also includes industrial action goals that the respective collective agreement does not include. In contrast to the relative peace obligation, the absolute peace obligation requires an express agreement in order to be effective. The relative peace obligation, on the other hand, automatically applies to all collectively regulated matters.
Obligation to arbitrate, ballot and warning strike
If the negotiations to conclude a collective agreement fail, an arbitration procedure usually follows before the labor dispute, which is based on voluntary agreements between the parties to the collective agreement. A compulsory arbitration as it existed in the Weimar Republic is excluded. Most arbitration agreements state that the conflicting parties do not have to accept the arbitration award. If one or both parties declare that the arbitration has failed, this is tantamount to the end of the peace obligation. Strikes and lockouts are then permitted, subject to the rules of proportionality.
This is usually followed by a so-called strike vote among the workforce on whether to carry out a strike. In the strike guidelines of the DGB of 1949, in addition to the executive board's right of veto, the qualified ballot with the requirement of a three-quarters majority of the members affected by the fight in the strike area was anchored. In 1958 the Federal Labor Court decided that without the implementation of an agreed arbitration , a vote on future combat measures would not be allowed. However, it cannot be concluded from this prohibition of voting at an inopportune time that an open-ended vote after the failure of the arbitration would already be a combat measure. Because with the ballot, strikes can be brought about, but also prevented. In 1974, the DGB gave up the obligation to take part in an internal ballot. Since then you can vote, but you don't have to. This was followed by the teaching of labor law and does not see in the association's internal ballot an admissibility condition for the strike even if it should be prescribed in the statutes. This would mean that not even the members could stop a strike. Missing, wrong or even falsified strike votes would not mean that the strike does not have to stop.
The law then does not differentiate between a warning strike and an actual forced strike . The ultima ratio principle applies in any case. An agreed arbitration must also be awaited. Warning strikes accompanying negotiations are therefore not permitted.
Not only the workers but also the employers have to wait for the result of the vote on the strike. Just like the strike that hurries ahead, an attack lockout that hurries ahead is incompatible with the principle of the ultima ratio.
Strike breaking and strike work
A strike often leads to work lying idle in the company on strike, even if not the entire workforce is on strike. Non-striking workers are not obliged to do so-called strike work, which replaces the work of the strikers, but are entitled to refuse this work without losing their right to pay. This is different if the work actually owed can be performed despite the strike. The same applies to temporary workers who can assert a right to refuse performance in companies on strike and who have not been allowed to be used as strike breakers since April 1, 2017 ( AÜG ). All employees who are commercially hired to other companies by their employer do not need to work as strike breakers in a company that has been on strike. This must not cause you any disadvantage and your wages must continue to be paid.(5 )
The Federal Labor Court adhered to the principle of collective bargaining until 2010 . It stated that in each company only one collective agreement could apply to the entire workforce. The strike of the train drivers' union GDL in 2007 , for example, was therefore illegal. In this case, however, the Chemnitz Labor Court granted the right to strike priority over unified collective bargaining, whereby the principle of proportionality had to be observed. However, this judgment was overturned by the Saxon State Labor Court.
Labor dispute law in the GDR
The trade unions' right to strike was anchored in the constitution of the German Democratic Republic of 1949 (Section 14 (2)). However, the FDGB rejected a strike against state- owned companies . The strike was ruled out as an instrument of industrial action, as was the (inadmissible) lockout. The labor code of 1961, the new constitution of 1968 and the labor code of 1978 no longer mentioned the right to strike.
- Wolfgang Däubler (Ed.): Industrial action law. Handbook for Practice , 3rd edition Nomos, Baden-Baden 2011.
- Otto Rudolf Kissel : labor dispute law. A guide , CH Beck, Munich 2002.
- Hansjörg Otto : Industrial Disputes and Arbitration Law , CH Beck, Munich 2006.
- Judgment of March 1, 1979, BVerfGE 50, 290 (353) .
- Federal Labor Court, judgment of January 15, 1955, BAGE 1, 158.
- BAG, judgment of September 12, 1984 , Az. 1 AZR 342/83.
- BAG, judgment of March 22, 1994, BAGE 76, 196.
- Federal Labor Court, judgment of January 28, 1955, BAGE 1, 291.
- verdi.de (PDF).
- Saarland Chamber of Labor, Labor Law for All, 14th edition 2000, p. 94.
- BAG, judgment of August 30, 1984 , Az. 1 AZR 765/93.
- BAG, judgment of June 10, 1980, BAGE 33, 140.
- BVerfG, judgment of 6 May 1964, BVerfGE 18, 18.
- BAG, judgment of April 21, 1971, BAGE 23, 292.
- Federal Labor Court, judgment of October 30, 1958, BAGE 6, 321.
- BAG, judgment of June 21, 1988, BAGE 58, 364.
- BAG, judgment of September 10, 1985.
- Press release of the Labor Court in Chemnitz ( Memento of October 24, 2007 in the Internet Archive )
- Press release from the State Labor Court of the Free State of Saxony (PDF).