Company justice
When operating Justice (also work jurisdiction or plant Tribunal ) is called in the German labor collective in-house punishment for internal misconduct by employees .
The sanctioned violations of norms include both civil and criminally relevant employment contract violations such as " blueing up ", drunkenness at work, disregard of safety regulations or property crimes against colleagues or the company. Like contractual penalties ( Section 339 of the German Civil Code), the imposed operating fines are private penalties.
White-collar crime is not punished by the internal company justice system , which is only prosecuted by the state criminal justice system because it is not only of a minor nature and requires state intervention in accordance with the principle of legality .
In the labor law of the GDR , there was a similar internal institution, the conflict commissions , which, however, was primarily ideologically motivated.
Germany
Historical development and function
The direct forerunners of industrial justice were the "associations against factory theft", which were founded at the beginning of industrialization to prevent the theft of company property. The first private security services were established in the USA at the end of the 19th century and in Germany in 1901. The clients of these "security and locking institutes" were mainly industrial companies, which, however, often later set up their own security services. Both external and internal security services made it possible for the management to detect and sanction violations of norms within the company.
The legal basis for in-house sanctions in the German Reich since 1891 was the trade regulations in the version of the law relating to the amendment of the trade regulations of June 1, 1891. After that, according to Sections 134 a ff. To issue work regulations for every factory with at least 20 workers after hearing the work committee. This could according to § 134 b No. 4 also provide for penalties as well as provisions on their type and amount, the type of their determination and, if they consist of money, on their confiscation and on the purpose for which they are to be used.
According to the Works Council Act (BRG) of 1920, it was incumbent on the workers' and employee councils or works councils to agree the work rules or other service regulations for a group of employees within the framework of the applicable collective agreements with the employer and to jointly determine the proposed penalties in individual cases (§ § 78, 80 BRG).
According to the fascist leader principle , the National Socialist law on the organization of national labor (Arbeitsordnungsgesetz, AOG) saw the entrepreneur as the "leader of the company", the employees and workers as his "allegiance", who "advised the leader of the company in the so-called trust council" stands (§§ 1, 5 AOG). The “manager of the company” had to issue company rules for the followers, which could also provide for fines for bad work (§§ 26 ff. AOG). These served primarily to maintain labor discipline and "industrial peace" during the Second World War .
In the Federal German Works Constitution Act , no more express regulation on works justice was included. However, the works councils were re-established and were given the co-determination rights known today .
The modern corporate judiciary pursues the entrepreneurial interest in social control in the company and is often seen in a tradition of feudal servant contracts , which granted the employer the right to chastise.
At the present time, there is a common interest of the actors involved in finding an internal solution for breaches of norms in the company and in avoiding public, image-damaging or stigmatizing criminal proceedings . The company justice system also promotes the culture of out-of-court dispute resolution and is a welcome relief for the state justice system.
In the post-war period, a customary legal justification for modern industrial justice was derived from this historical development. The lack of a legal basis and ongoing criticism of the constitutionality of the company justice system - especially in the 1960s and 1970s - led to the draft of a law regulating company justice (AE-BJG) in 1975. It was intended to lay the legal basis for industrial justice and to dispel the constitutional concerns about it. Both the trade unions and the employers' side rejected a statutory regulation, however, because they feared that their opportunities to participate or that they would intervene in the day-to-day work as a director.
The company justice system is still considered to be inadequately regulated by law, although company fines are now generally considered permissible. Their legality arises from Section 1 of the Collective Bargaining Act (TVG) and Section 87 (1) No. 1 of the Works Constitution Act (BetrVG), which, according to the prevailing opinion, give the company justice a legal basis.
Jurisdiction and Procedure
Collective measures of company justice, in particular the imposition of company fines, are in accordance with § 87 BetrVG and require the agreement of employers and employees (works council), in particular the agreement of an internal fine.
In contrast to this, unilateral individual legal reactions by the employer such as a warning , transfer or termination only require the cooperation of the works council in accordance with Section 99 , Section 102 BetrVG.
A distinction between “issues of company organization and employee behavior” within the meaning of Section 87 (1) No. 1 BetrVG and mere violations of the individual employment contract is significant, but sometimes difficult, with regard to these different requirements. The Federal Labor Court differentiates according to the purpose of the measure. Measures with the character of a sanction such as a company fine are subject to co-determination, whereas measures with a warning character such as a warning are not.
The fine must be agreed in a works agreement or a collective agreement and made known to the employees. The sanctioned behaviors must be sufficiently determined to be and the method for imposition of a fine satisfy legal principles, such as the presumption of innocence , the right to be heard , the operation of the public or of proportionality .
Measures of the company justice must be verifiable by the labor court , for example as "civil legal disputes between employee and employer from the employment relationship" ( § 2 Abs. 1 Nr. 3a ArbGG ).
Legal practice
The actual structure of the company justice system in the individual companies has been empirically investigated in various studies since the 1950s.
The institutionalization in a body with equal representation such as a special commission or a regulatory committee, the degree of normative regulation and the results or effectiveness vary according to the size of the company. Overall, company justice is of rather subordinate importance in day-to-day operations, but it is used with great success in large companies and is recognized by both sides as internal conflict management.
Switzerland
According to Swiss labor law, breaches of contract by employees can be punished unilaterally by the employer within the framework of the so-called company justice system through disciplinary measures. These measures correspond to the warning or termination according to German law. In Switzerland, too, they are based on the employer's right to issue instructions .
literature
- Ekkehard Schumann : Farewell to company justice. In: memorial for Rolf Dietz . Edited by Götz Hueck and Reinhard Richardi. Beck, Munich 1973, pp. 323-359.
- Johannes Feest : Company justice . Studies on the social control of deviant behavior in industrial companies. Berlin 1976.
- Günther Kaiser , Gerhard Metzger-Pregizer (Hrsg.): Betriebsjustiz. Studies on the social control of deviant behavior in industrial companies. Duncker & Humblot, Berlin 1976.
- Susanne Fischer: Companies as victims. An analysis of the display behavior. Finckenstein & Salmuth, Berlin 2001.
- Christiane Jentsch: Company justice . Shaker, Aachen 2005.
- Rüdiger Krause : Collective Labor Law III / Codetermination in Social Affairs II. Working Paper 5, University of Göttingen 2012.
Web links
- Company justice: the works court Der Spiegel , 1/1959 of January 1, 1959
- Herbert Lederer: Company justice ; - something outside of legality? Constitutional aspects of the work of company courts in 1965
- Manfred Murck: Criminality and Social Control Critical Justice , 1972, pp. 263–270
Individual evidence
- ↑ Klemens Pleyer, Joachim Lieser: To industrial justice in both parts of Germany. Germany Archive , 6/574.
- ^ Ingo Teichmeier: Company crime / company justice krimlex.de
- ^ Ulrich Luhmann: Company justice and the rule of law. Heidelberg, Verlagsgesellschaft Recht und Wirtschaft mbH, 1975, pp. 43-105.
- ↑ Works Council Act of February 4, 1920 RGBl. 1920, no.26.
- ↑ AOG of January 20, 1934 .
- ↑ Heinrich Siebert: The face of the company regulations. Monthly booklet for Nazi social policy (supplement “The Trust Council”) 1936, p. 97
- ^ Matthias Frese: National Socialist Confidants: On Company Policy in the “Third Reich” Friedrich-Ebert-Stiftung , 1992
- ^ Helmuth Bertermann: Penalty and contractual penalty for bad work . German Labor Law 1935, p. 246
- ↑ Wolfgang Spohn: On the “Works Constitution” in National Socialist Germany Friedrich-Ebert-Stiftung , 1984
- ^ Marion Hage: Operational conflict management in the GDR and the Federal Republic. Qualitative analysis and legal policy perspectives. Hamburg 2001, at the same time Lüneburg, Univ.-Diss., 2000, p. 158 ff. On the disputed legal basis of industrial justice in the Federal Republic.
- ^ Ingo Teichmeier: Company crime / company justice krimlex.de.
- ^ Draft of a law to regulate company justice. Tübingen (Mohr / Siebeck) 1975, 67 p., Printed in Hage, operational conflict management as Appendix V.
- ^ Ingo Teichmeier: Company crime / company justice krimlex.de.
- ^ Ingo Teichmeier: Company crime / company justice krimlex.de.
- ↑ BAG of December 5, 1975 - 1 AZR 94/74.
- ^ BAG decision of October 17, 1989 - 1 ABR 100/88 .
- ↑ BAG, judgment of January 30, 1979 - 1 AZR 342/76 .
- ^ BAG decision of October 17, 1989 - 1 ABR 100/88 .
- ^ BAG of September 12, 1967 - 1 AZR 34/66.
- ^ Marion Hage: Operational conflict management in the GDR and the Federal Republic. Qualitative analysis and legal policy perspectives. Hamburg 2001, also Lüneburg, Univ.-Diss., 2000, pp. 168 ff., 212 ff.
- ^ Günther Kaiser, Gerhard Metzger-Pregizer, Max Planck Institute for Foreign and International Criminal Law, Research Group 1970; see. in detail Hage, operational conflict handling , p. 175 ff.
- ↑ Warning - this must be observed . WEKA Business Media AG, Arbeitsshilfen.ch. Retrieved February 25, 2016.
- ↑ Disciplinary measuresarbeits-recht.ch. Retrieved February 25, 2016.
