A lockout is the temporary exemption of employees from their duty to work by an employer in a labor dispute without continued payment of wages. It is usually the employer's response to a strike ( defensive lockout ) and is intended to increase the cost of the strike for the unions as they have to pay more strike money .
In addition to the defensive lockout, the literature also describes the attack lockout, in which the employers' associations try to bring about changes in collective agreements.
According to the typology of strikes, lockouts can also be differentiated into sympathy, punitive, general lockout or, according to the area, into individual, association or area lockout.
Another distinction is that of suspending or releasing lockout. If the lockout is released, the employee concerned is dismissed without the old employment relationship being revived at the end of the industrial dispute. In the event of a suspending lockout, the employment relationship is only suspended and automatically resumed.
A distinction is made between cold and hot lockouts.
In German law, the hot lockout is a measure taken by the employer in an industrial dispute . It means the temporary exclusion of several employees from employment and wage payment, i.e. a cessation of work . In practice it is always a reaction (defensive measure) to a strike . The theoretically conceivable lockout of attacks does not occur in practice. The admissibility of a lockout is controversial in legal and political literature, but has long been recognized in case law. The lockout is only granted within the framework of equality of arms ( combat parity ).
A cold lockout describes a lockout when a company cannot produce because it is dependent on another company that is in a state of strike and thus also a hot lockout. This would be the case, for example, if an automobile manufacturer cannot produce cars because the supplier does not deliver any components and is therefore locked out.
An alleged dependency on the supplier exists if the employer, instead of a cold lockout, could instruct the employees to do activities that would also be feasible without the said component from the supplier on strike, but fail to do so because of too little expected added value. A real dependency exists when a product cannot be manufactured without the component from the supplier and the semi-finished product cannot be dumped without the component in question and when there are no other value-adding employment opportunities.
Arguments of the establishments
Cold lockouts are justified by the fact that further production is not possible due to the lack of supplied parts.
Argumentation of the trade unions
There is a widespread opinion among trade unions that cold lockouts are not absolutely necessary and are only arbitrary weapons in order to force unions to give up strikes (“cost club”).
The unions see cold lockouts as a means for employers to increase the cost of a strike. In the event of a strike in a small supplier company that produces for many companies, a “hot” lockout leads to large-scale lockouts in the companies that are no longer supplied. This means that these cold-locked companies with possibly hundreds of thousands of employees are also included in an industrial dispute . The aim of the employers, according to the trade unions, is to break the labor dispute quickly, as strike support is only paid for the original company that operates the hot lockout.
The workers affected by the cold lockout do not receive any financial support from the union or the employment office and thus also put pressure on the unions. After a change in the law (Section 116 AFG ) in 1986 , employees who were locked out under cold conditions are no longer paid short-time work benefits.
Amendment of § 116 AFG
Increased outsourcing of subtasks ( outsourcing ) increased in the 1970s and 1980s, the companies' dependence on their suppliers. Declared strategy of the unions beginning was the 1980s, therefore, by selective strikes paralyze in selected supplier companies, entire industries and their own strike fund to protect the small number of strikers. The employers reacted to this strategy with extensive "cold" lockouts of the companies that could no longer work due to a lack of preliminary products.
The employees affected by these lockouts generally received unemployment benefits during the lockout on the basis of the Employment Promotion Act . In the opinion of the government, this jeopardized the neutrality of the Federal Labor Office . Because of this, 116 AFG was rewritten by the Bundestag in 1986 (against the resistance of the SPD and the trade unions ) through the “Law to ensure the neutrality of the Federal Labor Office in Industrial Disputes”. Since this change in the law, it is only possible to pay unemployment benefits to “cold” locked out workers under very difficult conditions. The Federal Constitutional Court said in a ruling of 4 July 1995, this regulation was admissible.
The regulation of § 116 AFG was adopted with the inclusion of the employment promotion law in the Social Security Code on January 1, 1998 in SGB III without any substantive changes. Since April 1, 2012, the suspension of unemployment benefits in the event of labor disputes has been regulated in SGB III. The regulation has only been adapted to ensure equal linguistic treatment of women and men.
Frequency and extent of lockouts
The extent and frequency of lockouts changed depending on the epoch. In the German Empire, lockouts were a widely used method of industrial action. The high absolute number of lockouts (and strikes) compared to later years can be explained by the fact that at that time labor disputes were mainly fought at company level. Accordingly, the number of people affected per lockout was comparatively low.
In the Weimar Republic, labor disputes spread to sectors and regions. This was associated with a sharp increase in the number of those affected. The statistics show their peak in 1924, when 976,936 people in 11,003 companies were affected by a total of 392 lockouts and 22,775,774 working days were lost as a result.
In the Federal Republic of Germany, the lockout instrument is only used sporadically. Only in the labor disputes of 1963, 1971 and 1976 were workers affected by lockouts to a large extent.
|Period||Number of lockouts||Number of people locked out (in thousands)|
Compared to strikes, lockouts are much rarer, but last longer and affect more workers.
Lockouts did not play a major role until the second half of the 19th century. Instead, the employers' instruments in labor disputes were blacklists, strike funds and the dismissal of strikers and new hires. The first lockouts have been reported from the 1870s. The prerequisite was the formation of employers' associations. Lockouts were mainly carried out on questions of principle and the demand for general binding of collective agreements.
The first major lockout took place in February 1873. In the wage conflict in the printing industry (the typesetters were paid according to the imputed length of the text. The calculation was disputed: the union demanded the use of the real width of the letters, the employers wanted to use the width of the "n" uniformly) the first was wide generally binding collective bargaining agreement strikes. In this conflict, all unionized book printing journeyman were locked out. Nevertheless, on March 5, 1873, the unions managed to achieve the desired collective agreement.
The May lockouts were a repeated punishment in connection with the Memorial Day of May 1st: 8000 dock workers who participated in the celebration on May 1st, 1890, were sanctioned by a lockout from May 2nd to 11th. The same procedure was followed in the following years. In the following year, 181 Hamburg coppersmiths received “the usual 6-8 days”.
After the end of the Socialist Law in 1890, the number of strikes rose sharply. The number of lockouts increased accordingly, but these continued to focus on fundamental issues and the focus was on avoiding unionization in the factories. A wave of lockouts began in 1903 and peaked in 1905. After the attempts to prevent the unions from being organized were unsuccessful and the SPD achieved growth, the employers changed their strategy: Smaller work stoppages were immediately answered with lockouts in order to bring the unions to their knees. The last major lockout in the German Empire was the wage conflict in the construction industry in 1910.
Situation in Switzerland
The Swiss Federal Constitution enshrines the right to lock out in Art. 28 Para. 3 BV. A lawful lockout then sets two ahead: The lockout has the working relationship concern and also no commitments may preclude the industrial peace to keep or to conduct arbitration proceedings. From a systematic point of view, the right of lockout is part of the fundamental right of freedom of association according to Art. 28 BV.
- BAG of January 28, 1955, AP No. 1 to GG labor dispute
- BAG of April 21, 1971, AP No. 43 to Art. 9 GG labor dispute
- BAG of June 10, 1980, AP No. 65 to Art. 9 GG labor dispute
- BAG of April 26, 1988, AP No. 84 to Art. 9 GG labor dispute
- BAG of April 26, 1988, AP No. 101 to Art. 9 GG labor dispute
- BAG of June 7, 1988, AP No. 107 to Art. 9 GG labor dispute
- BVerfG of June 26, 1991, AP No. 117 to Art. 9 GG labor dispute
- BAG of August 11, 1991, AP No. 124 to Art. 9 GG labor dispute
- BAG of June 27, 1995, DB 1996, 143 to Art. 9 GG labor dispute
- Michael Schneider: Lockout: its history and function from the German Empire until today . 1980, ISBN 3-7663-0414-3
- The struggle for strike paragraph 116 ... because we do not give up , IG Metall, Frankfurt 1986, ISBN 3-922454-08-9
- cold lockout . IG Metall
- Otto Ladendorf : Historical subject headings book . 1906. textlog.de
- Hans Carl Nipperdey, Alfred Hueck: Textbook of labor law . 7th edition. Volume II / 2, 1970, p. 900
- Gerhard Kessler: The German employers' associations . 1907, p. 239 ff.
- Gerhard Kessler: The German employers' associations . 1907, p. 250.
- Guido Jansen: The company co-determination in industrial action . Duncker & Humblot , Berlin 1999, ISBN 3-428-09471-9 , pp. 28 .
- § 116 AFG in dispute (PDF)
- BVerfG, judgment of July 4, 1995, Az. 1 BvF 2/86; 1 BvF 1/87; 1 BvF 2/87; 1 BvF 3/87; 1 BvF 4/87; 1 BvR 1421/86; BVerfGE 92, 365 - Short-time work allowance.
- Art. 1 of the Employment Promotion Reform Act (Arbeitsförderungs-Reformgesetz - AFRG) of March 24, 1997, Federal Law Gazette I, pp. 594, 633.
- Art. 2 No. 19 of the Act to Improve Integration Chances on the Labor Market of December 20, 2011, Federal Law Gazette I, pp. 2854, 2901
- Michael Schneider: Lockout ... , 1980, pp. 22-23
- For the period 1900 to 1976: Michael Schneider: Lockout… , 1980, pp. 22–23, for the period 1971 to 2009: Hans Böckler Foundation
- Michael Schneider: Lockout ... , 1980, pp. 23-27
- Michael Schneider: Lockout ... , 1980, pp. 55–56
- Michael Schneider: Lockout ... , 1980, p. 57
- Michael Schneider: Lockout ... , 1980, pp. 58–67
- Michael Schneider: Lockout ... , 1980, pp. 67-70
- Art. 29 HV.