Tariff unit

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The term collective bargaining unit is understood to mean the legal principle that only one collective agreement is to be applied in an employment relationship or in a company . There is a conflict rule in the case of tariff competition in an employment relationship (collective unit in the employment relationship), or in the case of collective plurality in one operation (bargaining unit in operation), so for those cases in which several collective agreements are applicable on the same facts.

The principle of unified collective bargaining was applicable law in Germany until the beginning of 2010 due to decades of consistent case law of the Federal Labor Court . The labor court case law thus determined the applicable collective agreement if several collective agreements regulated the same activity. On January 27, 2010, the 4th Senate of the Federal Labor Court decided not to adhere to the previous case law in the event of a plurality of tariffs. On June 23, 2010, the 10th Senate of the Federal Labor Court adopted this amended legal opinion in two resolutions. This gave up the principle of unity of tariffs in the event of tariff plurality. There is no overriding principle that only uniform collective bargaining rules can be used for different employment relationships of the same type in one company.

The law on collective bargaining has been in force in Germany since July 10, 2015. It stipulates that, in the event of conflicting collective agreements in a company, only the legal norms of the collective agreement of the union that has the most members at the time of the conclusion of the most recently concluded collective agreement in the company ( Section 4a of the Collective Agreement Act ). The law has been sharply criticized by trade unions and the opposition and has been the subject of several constitutional complaints .

Tariff competition

In cases of collective bargaining competition, an employment relationship is covered by several collective agreements that contain the same regulatory material. A distinction must be made here according to the cause of the competition: The respective parties to the collective bargaining agreement can have concluded the conflicting collective agreements "autonomously" , for example if there is an association collective agreement and a company collective agreement. The other possibility is that the tariff competition was caused by state influence. This is for example the case, if there is still next to a company agreement one by § 5 para. 4 TVG for generally binding collective agreement is, or if the employer despite dressing change after § 3 is linked to the previous collective agreement, para. 3 TVG. In these cases, case law establishes the collective bargaining unit in the employment relationship according to the principle of specialty. According to this, the collective agreement that is closest to the company in terms of space and expertise must be applied. The company collective agreement has priority over the association collective agreement, the subject-specific one over the interdisciplinary one and the regional one over the national one. If no priority of a collective agreement can be determined based on the specialty principle, the collective agreement that covers most employment relationships in the company (majority principle) is applied.

Tariff plurality

A distinction must be made between this and the cases of tariff plurality. It exists when several collective agreements apply to different employment relationships in a company, i.e. the employer is bound by two collective agreements. Such a case exists, for example, in a hospital in which both members of ver.di and those of the Marburger Bund are represented. According to previous jurisprudence, such tariff pluralities were basically to be resolved according to the principle of tariff unity. The principle was therefore “one company - one tariff”. The reason given was that the coexistence of several collective agreements would create insurmountable practical difficulties for the employer. This is all the more true as workers can change unions at any time. In order to maintain legal certainty and legal clarity , a single collective agreement must therefore apply to the entire company . Which that is, results from the principle of specialty.

The main criticism was that this encroachment on the freedom of association ( Article 9, Paragraph 3, Clause 1 of the Basic Law ) of the employee and the (ousted) trade union was not constitutionally justifiable. In particular, an employee who is organized in the “displaced” union is deprived of the “fruits of his coalition” and reverts to the status of a non-organized member if no reference clause is agreed.

The Federal Labor Court finally followed this line of argument in 2010 and abandoned the principle of tariff unity in the case of tariff plurality.

Unified collective bargaining law

On October 28, 2014, Federal Labor Minister Andrea Nahles presented a “draft law regulating collective bargaining units (collective bargaining unit law)”. It states, among other things: "If the areas of application of collective agreements of different unions that do not have the same content overlap (conflicting collective agreements), only the legal norms of the collective agreement of the union that has the most members at the time of the conclusion of the most recently concluded conflicting collective agreement in the company are applicable . ”According to the federal government, the aim of the regulation is to prevent small divisional companies from being able to“ paralyze the country ”. The justification for the law also sees industrial peace as endangered by distribution struggles between competing unions.

The law was passed in the Bundestag on May 22, 2015 with 480 votes to 126 and entered into force on July 10, 2015.

The draft was already criticized by the branch unions : They see their influence and the freedom of association guaranteed in the Basic Law at risk. Former Federal Minister of the Interior Gerhart Baum , lawyer for the cockpit pilots' association , also expressed constitutional concerns. Likewise, the service union ver.di rejects the collective bargaining law and warns of the consequences. Representatives of the left accused the law of restricting the right to strike of small unions. Anton Hofreiter emphasized that the law prevents sector unions from raising the wage level.

From jurisprudence it is criticized that the law undermines the freedom of association protected by Article 9 (3) of the Basic Law for no objective reason. The factual basis submitted by the federal government to justify it is not sufficient: it does not contain any indications that the abolition of the collective bargaining unit by the case law would have led to more days of strikes.

The Marburger Bund , the cockpit pilots' association , the German Association of Journalists, the trade union umbrella organization DBB Beamtenbund and Tarifunion as well as the United Service Union have lodged constitutional complaints against the law. On July 31, 2015, the German Locomotive Drivers Union also filed a constitutional complaint against the law. Four train drivers, two train attendants, an on-board restaurateur, a locomotive shunter (GDL) and a dispatcher claim that their fundamental rights ( Art. 2, Paragraph 1 and Art. 9, Paragraph 3 of the Basic Law) have been violated. The collective agreement concluded between Deutsche Bahn and GDL before the law came into force is not affected by the law. The Federal Constitutional Court rejected the application of the professional unions for an interim order against the law on October 6, 2015.

At the beginning of July 2017, the BVerfG finally ruled in the main proceedings that the TVG was largely in conformity with the constitution. The only thing that needs to be improved is protective measures to prevent specific professional groups from being excessively disadvantaged under the collective agreement of the majority of company union members because it does not sufficiently take their particular interests into account.

The amendment provides that minority collective agreements remain valid if the interests of unionized professional or employee groups, which are also covered by the minority collective agreement, have not been "seriously and effectively taken into account" when the majority collective agreement was concluded, as stated in the amendment to the Collective Bargaining Act called.

Cross-union Swiss regulation

In Switzerland there is a special regulation option, the legal institution of the so-called collective labor contract : The company invites all affected trade unions to sit down together with employer representatives if they are interested in order to come to a mutual agreement.

This is then binding for all trade unions, including those not interested in this agreement, as well as for non-organized workers.

literature

  • Friedrich-Wilhelm Lehmann: Coalition decision on the creation of a law on collective bargaining - a case for the Federal Constitutional Court? In: Operations consultant. 11/2014. Page 634–637.

Individual evidence

  1. ↑ Principle of tariff unity - inquiry resolution according to § 45 ArbGG. BAG, January 27, 2010, accessed on May 4, 2015 .
  2. ^ Fourth Senate intends to change the case law on tariff unity. BAG, January 27, 2010, accessed on February 2, 2010 .
  3. ↑ File number: 10 AS 2/10 and 10 AS 3/10
  4. ^ Principle of tariff unity. Bundesarbeitsgericht.de, June 23, 2010, accessed May 4, 2015 .
  5. ↑ Federal Labor Court overturns collective bargaining in companies. Reuters Germany, June 23, 2010, accessed May 4, 2015 .
  6. ↑ Federal Law Gazette I 2015, 1130.
  7. ↑ Junker, Abbo : Basic course in labor law, 6th edition, Munich 2007, Rn. 559
  8. ↑ Wiedemann / Arnold, ZTR 1994, tariff competition and tariff plurality of the BAG, p. 402
  9. ↑ BAG of December 4, 2002 - 10 AZR 113/02
  10. ↑ Jacobs, Matthias: collective bargaining unit and collective bargaining competition, Berlin 1999, p. 99 ff.
  11. ↑ BAG, judgment of January 27, 2010, NZA 2010, 645, 649.
  12. ^ BAG, judgment of March 20, 1991, NZA 1991, 736.
  13. ^ Judgment of March 20, 1991, NZA 1991, 736, 738.
  14. ^ Giesen, Richard: Beck'scher Online Commentary Labor Law Section 4 TVG Rn. 16.
  15. ↑ Bayreuther, Frank: Tariff pluralities and competition in the company - On the future of the principle of tariff unity, NZA 2007, 187, 189.
  16. ↑ BAG, judgment of 7 July 2010, NZA 2010, 1068 ff.
  17. ↑ Frank Strankmann: Law on " collective bargaining ": contracts of the majority union should be decisive. Betriebsratspraxis24, October 28, 2014, accessed October 29, 2014 .
  18. ↑ a b c Bundestag passes unified collective bargaining law - "Yes" after a violent exchange of blows tagesschau.de, May 22, 2015, accessed on July 30, 2015
  19. ↑ a b c Ewer: Undermining the basic rights of the professional and branch unions - the collective bargaining law , NJW 2015, 2230
  20. ↑ "Of course I am making a constitutional complaint". Handelsblatt, accessed on October 30, 2014 .
  21. ↑ "Verdi boss Bsirske rejects tariff unity law". FAZ, accessed on May 22, 2015 .
  22. ↑ Collective Bargaining Act is in force - unions go to court ( Memento from July 12, 2015 in the Internet Archive ), tagesschau.de from July 10, 2015, accessed on July 30, 2015
  23. ↑ Weselsky continues to fight . In: Frankfurter Allgemeine Sonntagszeitung . No. August 31 , 2015 ( online ).
  24. ↑ BVerfG rejects application for an interim order from the Federal Constitutional Court, on October 6, 2015, accessed on July 11, 2017
  25. ↑ Federal Constitutional Court: The collective bargaining unit law is largely compatible with the Basic Law. Retrieved July 24, 2017 . NJW 2017, 2523 with a note from Mike Wienbracke
  26. ^ Deutscher Ärzteverlag GmbH, editorial office of Deutsches Ärzteblatt: Bundestag changes collective bargaining law. November 30, 2018, accessed June 11, 2019 .