Collective bargaining community of Christian unions for temporary work and personnel service agencies

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The collective bargaining community of Christian unions for temporary work and personnel service agencies (CGZP) is an amalgamation of originally six Christian unions of the Christian Trade Union Confederation (CGB). According to a decision by the Federal Labor Court in December 2010, the collective bargaining community is not eligible for collective bargaining , meaning that collective bargaining agreements concluded with it are null and void. In May 2012, the Federal Labor Court ruled that the tariff had not been given since it was founded. In 2015, the Federal Constitutional Court confirmed the retrospective collective bargaining disqualification from the labor courts.

History and structure

The collective bargaining community of Christian trade unions for temporary work and personnel service agencies (CGZP) was originally founded in autumn 2002 by six unions of the Christian Trade Union Confederation (CGB). Today you still have three CGB member unions:

The CGB member unions, the Association of German Technicians (VDT) and the Association of Hotel, Restaurant and Cafe Employees - Union Ganymed, have since left the collective bargaining community. In mid-2009, the Christian Post Service and Telecommunications Union (CGPT) also left the collective bargaining community. However, your previous memberships still have an effect on collective agreements concluded before you left.

First different collective agreement

On January 1, 2003, the then Federal Minister for Economics and Labor in the Schröder government , Wolfgang Clement , repealed several legal framework conditions for temporary work from the Temporary Employment Act (AÜG) without replacement in the course of Agenda 2010 for the purpose of "making the labor market more flexible" . A new principle of equal treatment was introduced to compensate for the abolition of the restriction on the maximum lease period, the ban on fixed-term contracts, the ban on reinstatement and the ban on synchronization. With this, temporary workers should be formally equated with permanent employees with regard to wages, vacation and working hours (so-called equal pay and equal treatment). The Minister Wolfgang Clement waived a legally immovable stipulation and supplemented the legal text with the restrictive wording "A collective agreement can permit different regulations".

On February 24, 2003, the CGZP concluded the first deviating nationwide collective agreement for temporary employment agencies with the Northern Bavarian Temporary Employment Agency (INZ). This affected around 40 member companies with around 10,000 employees. The wage level was 40% below what the Bundesverband Zeitarbeit BZA had already negotiated with the DGB . As a result, the BZA did not sign the agreement, but subsequently negotiated wages with the DGB , which in the lowest wage group were a third lower than the statutory minimum wage in the main construction trade . This established low wages in the temporary work sector and the companies began to no longer use temporary workers only to cushion peak orders, but to lay off permanent staff and employ temporary workers on a permanent basis. There was also an increase in the incentives not to directly hire staff made redundant for operational reasons , but only as temporary workers (“ revolving door effect ”).

Today the employers 'associations INZ and MVZ have merged to form the employers' association of medium-sized personnel service providers (AMP), which continues the collective bargaining partnership with the CGZP. In addition, the CGZP has concluded numerous company collective agreements. There are no collective agreements with the two other employers' associations, the Bundesverband Zeitarbeit, Personal-Dienstleistungen (BZA) and the Association of German Temporary Employment Firms (iGZ).

On November 24, 2010, the CGZP concluded a new collective agreement on temporary work with the small employers' association Mercedarius.

Controversy

The collective bargaining capacity of the CGZP, as well as its competence for the conclusion of collective agreements for the temporary employment industry, was denied by the Federal Labor Court in Erfurt.

In the ARD political magazine Report Mainz on December 10, 2007 , considerable criticism of the collective agreements of the CGZP was again raised. In a study by the legal scholar Peter Schüren from the Institute for Labor, Social and Commercial Law at the University of Münster, he doubts the tariff eligibility of the CGZP and thus also the validity of the collective agreements. Marc Lembke comes to the opposite view with strong criticism of Schüren's methodical approach.

The then deputy chairman of the ver.di union, Gerd Herzberg , pointed out in 2009 that the CGZP had relied on an expert opinion from the employers' association in court proceedings, which, in his view, suggested that the CGZP was incapable of conducting its own litigation and thus their independence is doubtful.

Even the temporary employers' association IG-Zeitarbeit comes to the conclusion in a statement about the effects of determining the incapacity of the CGZP: "Since the collective agreements concluded with the CGZP would be ineffective from the start, the employees could retroactively raise their wage claims up to the limitation period of three Years (§ 195 BGB). "

Furthermore, the IGZ makes it clear that under this aspect, temporary workers have a retrospective entitlement to remuneration of the main company, which is usually significantly higher than the wages of the temporary workers.

"In order to reduce liability risks, it is sometimes recommended to agree individual contractual exclusion periods (the exclusion periods agreed in the CGZP collective agreements are equally ineffective if the CGZP collective agreements are ineffective). According to case law, individual contractual exclusion periods must not be shorter than three months It is very doubtful whether such a period will even be set in motion if an equal treatment claim exists objectively but has not been billed. Because according to the case law of the Federal Labor Court, the due date only begins when the The employee is objectively able to quantify the amount of the claim (BAG, judgment of February 9, 2005 - 5 AZR 175/04). Therefore, there is much to suggest that a legally permissible exclusion period of three months is not suitable for retroactive assertion The BAG is, according to al With foresight, grant no protection of trust. The highest German labor court ruled that good faith in the ability of a union to pay tariffs - and thus in the effectiveness of a collective agreement - is not protected (BAG, judgment of November 15, 2006 - 10 AZR 665/05). "

Jurisprudence

Labor Court Berlin

The Berlin Labor Court suspended proceedings pending a decision by the Federal Labor Court on January 16, 2007 ( file number : 81 Ca 27913/05) because at least two of the CGZP unions - the Christian Union of Post Service and Telecommunications and the German Trade and Industrial Employees Association - are not responsible for the temporary employment industry according to their statutes.

The Berlin Labor Court decided on February 5, 2008 ( Az.  54 BV 13961/06) that this proceeding should be discontinued. The background to this was the fact that the employee affected by the collective agreement had withdrawn the lawsuit and was no longer involved in the proceedings. However, the court once again indicated that it had considerable doubts about the effectiveness of the collective bargaining agreements. In its oral justification, it pointed out that employees can only have a possible inadequate collective bargaining ability of a union determined in court to a limited extent. Your determination of interest can always only refer to the collective agreement that applies to your employment. Therefore, a so-called secondary intervention of a temporary worker in this procedure was not permitted from the court's point of view.

Labor court Osnabrück

In a decision dated January 15, 2007 (Az. 3 Ca 535/06), the Osnabrück Labor Court expressed considerable doubts about the CGZP's tariff eligibility. The number of collective bargaining agreements concluded by the CGZP alone is not indicative of the existence of tariff eligibility, since all these collective bargaining agreements only serve to lower statutory minimum standards. In addition, due to the lack of significant membership, the CGZP has no democratic legitimation and ultimately does not represent anyone. However, since the question of tariff eligibility was not relevant to the decision, no decision was made on the status of the CGZP.

Limburg Labor Court

The Limburg Labor Court has also expressed doubts about the CGZP's tariff eligibility and therefore suspended proceedings pending a decision by the BAG. The labor court stated the following:

  • The collective bargaining agreement of Christian labor unions Temporary Work and PSA (CGZP) is doubtful in the vast majority of literature.
  • The doubts about the tariff eligibility of the CGZP arise from the point of view that so far conditions have become known for collective agreements of the CGZP that always deviate from the legal level, in particular as far as the legal requirement of equal pay in § 9 No. 2 AÜG is concerned . This rather speaks against the assertiveness and efficiency of the unions behind it. The ability of a union to pay tariffs is shown above all by the fact that it is able to enforce working conditions in favor of the members it represents.
  • Doubts about the tariff eligibility also arise from the point of view that it is not yet known how many members the CGZP or the unions in it have. Doubts about the power arise from the point of view that the employers are recruiting members for these unions.
  • The tariff capacity of a top organization i. S. d. Section 2 (3) TVG depends on all of its members being eligible for tariffs. From this point of view, doubts arise about the tariff eligibility and tariff responsibility of the CGZP.

First and second instance determination of the lack of tariff eligibility

On April 1, 2009, the Berlin Labor Court (Az. 35 BV 17008/08) decided, at the request of the State of Berlin and the DGB union ver.di, that the CGZP is not eligible for tariffs because it lacks the necessary social power. In  response to the complaint of the CGZP, the regional labor court Berlin-Brandenburg confirmed by decision of December 7, 2009 ( Az. 23 TaBV 1016/09), the decision of the labor court that the CGZP is not subject to collective bargaining because its member unions do not fully cover their indivisible) collective bargaining capacity, but have only transferred the collective bargaining issues to the CGZP for the temporary work sector. In addition, the organizational area specified in the statutes of the CGZP for commercial temporary employment in all branches of industry goes beyond that of its member unions, which only contain regulations for temporary work in their branches in their statutes.

Decision of the Federal Labor Court

The Federal Labor Court ruled on December 14, 2010 ( Az.  1 ABR 19/10) that the CGZP was not eligible for tariffs. The court justified this with essentially the same arguments as the lower court. The CGZP only represented 1,383 members, while the temporary employment sector employs around 760,000 people. A possible lack of social power on the part of the individual unions played no role in the reasons for the decision, however, since the inability to pay collective bargaining was already a result of the above. formal criteria (incomplete transfer of tariff responsibility, exceeding the organizational scope) could be determined. Although this decision was made in relation to the present, the court stated in its reasons for the decision that the provisions of the CGZP statutes of 2009 leading to collective bargaining are found with the same provisions in the previous statutes. The collective agreements concluded with the CGZP applied to around 1,600 companies with a total of over 280,000 employees.

Determination of the past-related incapacity to pay

With a ruling of January 9, 2012 (Az. 24 TaBV 1285/11), the Berlin Regional Labor Court decided that the CGZP was not subject to tariffs in the past either, specifically on November 29, 2004, June 19, 2006 and July 9 2008. It thus confirmed the decision of the Berlin Labor Court of May 30, 2011 (Az. 29 BV 13947/10) and was based on the reasoning of the Federal Labor Court's decision. The legal complaint was not admitted and the non-admission complaint was rejected by the Federal Labor Court on May 22, 2012 (Az. 1 ABN 27/12), so that this decision is final . Furthermore, the Federal Labor Court has ruled that the lack of tariff eligibility of the CGZP has now been legally established (Az. 1 AZB 58/11 and 1 AZB 67/11).

A declaratory action by the employers' association for the validity of all collective agreements since 2003 was rejected by the Berlin Labor Court in November 2011 as inadmissible (Az. 55 Ca 5022/11).

Effects

This decision has serious consequences for those employers who have entered into collective agreements with the CGZP directly or through their employers' association. All collective agreements that CGZP has concluded as the sole contractual partner are then ineffective from the start. This position is also represented in the specialist literature and the first judgments by labor courts follow this line of argument (ArbG Herford, Az. 2 Ca 144/11 of May 4, 2011 and ArbG Münster, Az. 4 Ca 2557/10 of May 13, 2011) , also for the multi-level collective bargaining agreement concluded in 2010 with the AMP . This is particularly relevant for Section 9 No. 2 of the Temporary Employment Act . The regulation allows exceptions to the equal pay requirement - i.e. the obligation of the leasing company to employ the temporary worker under the same working conditions (in particular the same wages) as apply to the permanent workforce in the hiring company - only on the basis of a collective agreement. If the collective bargaining agreement is null and void, the temporary employment agencies must retrospectively pay the social security contributions for the wage difference of the last four years as well as the wage difference to the employee, provided that no individual contractually agreed exclusion periods apply or the claims are not statute-barred . In contrast to the Berlin Labor Court, the Berlin-Brandenburg Regional Labor Court had assumed that the United Service Union (ver.di) would be responsible for the temporary employment industry.

As a result, the approximately 280,000 affected employees can sue for back payments. It is possible that employers will also have to file for bankruptcy due to the increased financing costs. In addition to the additional salary payments for the employees, significant additional income is expected from tax and social security contributions.

Decisions of the regional social courts

In April and May 2012, the Hessian State Social Court and the State Social Court of North Rhine-Westphalia decided that the temporary employment agencies that had concluded collective agreements with the CGZP had to pay additional social security contributions. The temporary workers were to be paid like comparable workers of the hirer. The difference for the social security contributions that were attributable to the wages withheld must now be paid later.

Web links

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  1. ↑ Federal Labor Court: Press Release No. 93/10. The CGZP cannot conclude any collective agreements. December 14, 2010, accessed on December 14, 2010 (decision of December 14, 2010 - 1 ABR 19/10 -. Lower court: Landesarbeitsgericht Berlin-Brandenburg, decision of December 7, 2009 - 23 TaBV 1016/09 -).
  2. ↑ a b Federal Labor Court Erfurt: Press release no. 39/12. May 25, 2012. Retrieved May 26, 2012 .
  3. ↑ dpa: The union is not eligible for collective bargaining agreements , in: FAZ , May 30, 2015, p. 20.
  4. ↑ Self-assessment by the CGB ( Memento of the original from April 9, 2009 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. @1@ 2Template: Webachiv / IABot / www.cgb.info
  5. ↑ "The staff at companies for postal services, logistics and telecommunications" ( Memento of the original from October 10, 2012 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. , (Membership magazine of the CGPT), Issue 4 / August 2009, p. 7. @1@ 2Template: Webachiv / IABot / www.cgpt.de
  6. ↑ Roman Milenski, Temporary Work - Opportunity or Prekarisierung? , GRIN Verlag, 2010, page 22.
  7. ↑ Ansgar Mayer: Small, cheeky and very clever , Die Zeit, May 22, 2003
  8. ↑ Peter Thelen: Judges declare collective agreements on temporary work to be ineffective , Handelsblatt dated December 8, 2009, accessed on July 31, 2013.
  9. ^ First collective agreements for temporary work , SoZ , May 2003, page 5, accessed on July 31, 2013.
  10. ^ Christian Plöger: IG Metall defames unpleasant competition , impulse.de from February 26, 2003, accessed on July 31, 2013.
  11. ↑ Temporary work: Every third position for temporary workers ( memento of the original from January 4, 2014 in the Internet Archive ) Info: The archive link was automatically inserted and not yet checked. Please check the original and archive link according to the instructions and then remove this notice. ingenieur.de of July 30, 2010, accessed on July 31, 2013. @1@ 2Template: Webachiv / IABot / www.ingenieur.de
  12. ↑ Horst Gobrecht: Equal pay for equal work - and bye! , dkp-online.de of June 13, 2003, accessed on July 31, 2013.
  13. ↑ DGB welcomes collective agreement on temporary work , AP report on faz.net from May 28, 2013, accessed on July 31, 2013.
  14. ↑ Von der Leyen wants to take action against abuse , Handelsblatt dated March 25, 2012, accessed on August 1, 2013.
  15. ↑ Karin Finkenzeller: For a few euros less , Die Zeit from October 15, 2010, accessed on August 1, 2013.
  16. ↑ CGB press release - http://www.cgb.info/aktuell/p_mercedarius.php ( Memento of November 30, 2010 in the Internet Archive ) - press release of November 24, 2010.
  17. ↑ Marc Lembke, NZA 2007, pp. 1333, 1334.
  18. ↑ Ver.di, "Publik", 12/2009, page 11 , "Not tariff-compatible"
  19. ↑ IGZ, "Effects-Determination-Tariff Inability-CGZP" ( Memento of the original from September 23, 2010 in the Internet Archive ) Info: The archive link was inserted automatically and not yet checked. Please check the original and archive link according to the instructions and then remove this notice. (PDF file; 100 kB), "Effects-Determination-Tariff Invalidity-CGZP" page 2. @1@ 2Template: Webachiv / IABot / www.ig-zeitarbeit.de
  20. ^ Order of the Berlin Labor Court on February 5, 2008
  21. ↑ Limburg Labor Court, order of November 19, 2008, Az: 1 Ca 541/08.
  22. ↑ Ver.di PUBLIK, April 2009, page 10, "" Without members there is no power "
  23. ↑ Labor Court Berlin, decision of April 1, 2009, 35 BV 17008/08 Press release of the Labor Court ( Memento of the original of May 13, 2009 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. @1@ 2Template: Webachiv / IABot / www.berlin.de
  24. ↑ http://blog.beck.de/2009/04/13/arbg-berlin-tarifgemeinschaft-christlicher-gewerkschaften-fuer-leiharbeit-cgzp-nicht-tariffaehig .
  25. ^ BAG decision of December 14, 2010, 1 ABR 19/10. The CGZP cannot conclude any collective agreements. December 14, 2010, accessed February 27, 2011 .
  26. ^ Corinna Budras: collective agreements in temporary work denied. FAZ.NET, December 14, 2010, accessed on December 14, 2010 .
  27. ↑ Stefan Schulte: Many temporary employment agencies are threatened with bankruptcy. The West, December 14, 2010, accessed December 14, 2010 .
  28. ↑ Landesarbeitsgericht Berlin: Press Release No. 02/12. January 10, 2012, accessed January 11, 2012 .
  29. ↑ Landesarbeitsgericht Berlin: Full text of the decision, Az. 24 TaBV 1285/11. January 9, 2012, accessed May 18, 2012 .
  30. ↑ Labor Court Berlin: Press release No. 03/12 on the judgment of November 28, 2011. January 10, 2012, accessed on January 11, 2012 .
  31. ↑ Prof. Christiane Brors in the journal Arbeit und Recht 138, 2011: Expert: CGZP suspension not required. (No longer available online.) At www.neues-arbeitsrecht.info, formerly in the original ; Retrieved June 8, 2010 .  ( Page no longer available , search in web archives )  Info: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice. @1@ 2Template: Toter Link / www.neues-arbeitsrecht.info  
  32. ↑ Annelie Buntenbach, Invalid dumping tariffs in temporary work: employers threaten back payments of wages and social contributions, SozSich 2010, 110f.
  33. ↑ German statutory accident insurance: Central social insurance organizations on the incapacity of the CGZP ( Memento of the original from May 24, 2011 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. . Press release of March 18, 2011. Accessed March 18, 2011. @1@ 2Template: Webachiv / IABot / dguv.de
  34. ↑ Hessian State Labor Court: AZ: 13 Sa 1608/12 Decision on equal pay additional payment Retrieved on June 2, 2020.
  35. ↑ Interview with lawyer Daniel Weidmann , Neues Deutschland, December 29, 2010.
  36. ↑ Hessian State Social Court. Decision of April 23, 2012 - L 1 KR 95/12 B ER.
  37. ^ Regional Social Court for the State of North Rhine-Westphalia. Decision of May 13, 2012 - L 8 R 164/12 B ER.