Tariff compliance regulation

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A collective agreement regulation is an obligation of the contractor of a public procurement procedure to pay his employees a collective wage or to comply with other provisions of a collective agreement . Collective bargaining regulations are thus part of procurement and labor law and have the legislative purpose of using the award of public contracts for social and economic policy purposes.

In German law, a distinction is made between constitutive and declaratory tariff compliance regulations. The former oblige companies to pay a certain collective wage, the latter only stipulate an already existing obligation (for example from a directly applicable collective agreement or a minimum wage). Constitutive tariff compliance regulations (with the exception of local public transport) violate European Union law ; declaratory tariff compliance regulations and so-called minimum wages are permitted.

history

The link between public contracts and compliance with certain minimum social standards can be traced back to the end of the 19th century. The US state of Kansas enacted the first statutory collective agreement regulation in 1891:

"That not less than the current rate of per diem wages in the locality where the work is performed shall be paid to laborers, workmen, mechanics and other persons so employed by or on behalf of the state of Kansas [...]."

Collective agreements in Germany

In Germany there are laws in 14 of 16 federal states, according to which public contracting authorities are only allowed to award public contracts to companies that pay their employees a certain minimum wage and that comply with collective bargaining agreements with regard to generally binding collective agreements. For this purpose, the award is made dependent on the contractor's commitment to the client to comply with these requirements.

purpose

Collective bargaining regulations pursue socio-political purposes: In the award procedure, the state is required to award the most economical offer from bidders in a public contract award. However, this competition is not intended to take place at the expense of the remuneration of the public contractor's employees. At the same time, collective agreements are to be supported. A collective bargaining agreement is intended on the one hand to give employees who are not bound by collective bargaining the advantages of a collective agreement and on the other hand to avoid distortions in the competition between bidders for contracts with and without collective bargaining coverage.

Procedure and mechanism of action

Collective agreements regulations are regulations which oblige the bidder in a formal procurement procedure, with their offer a so-called collective agreements explanation to give, in which they pledge contract, their busy to meet the contractually owed services workers in relation to industry to pay valid and work collectively agreed charges or to comply with other collectively agreed working conditions.

Subcontracting Clause

In addition to the duty to comply with collective bargaining agreements, all state-based collective bargaining regulations also contained a so-called subcontractor clause . Thereafter, the contractor had to again oblige his subcontractors to comply with the tariff.

Determination of the relevant collective agreement

The determination of the relevant collective agreement to be applied varied and in many cases raised considerable problems of interpretation. In the older regulations in particular, the legislature apparently assumed nationwide tariff unity , while more recent regulations provided for different selection criteria for certain authorities or the issuing body itself, depending on the country. Otherwise, the discretion that collective agreement regulations grant most authorities was not exercised. It could also be problematic to determine the group of employees covered.

control

In order to ensure compliance with the collective agreement regulation, the state laws provided for control rights for the client and verification obligations for the contractor. In the event of a breach, the public sector partially reserved a special right of termination, was able to impose a contractual penalty on the contractor or to exclude it from the award of public contracts for a longer period of time.

Legal nature of the collective agreement declaration

The contractor's declaration of compliance with the collective bargaining agreement established a secondary obligation under private law between the client and the contractor. A private demand workers' rights to compensation after the agreed procurement contract wage agreement in the sense of genuine contract in favor of third parties according to §§ 328 ff. BGB did not reflect the will of the parties and was not compatible with the nature of the procurement contract (with penalties and award Forbidden). It was therefore a bogus contract in favor of third parties.

Constitutive and declaratory collective agreement declarations

A distinction must be made between so-called constitutive and merely declaratory collective agreement declarations. In the case of a declaration of compliance with collective bargaining agreements, the entrepreneur only undertakes to pay his employees the wages owed by the collective bargaining agreement in the case of mutual collective bargaining. The already existing obligation from the normative effect of the collective agreement is therefore flanked by contractual (special right of termination, contractual penalty) and public procurement law (order freeze) sanctions. Constitutive collective agreement regulations, on the other hand, also bind contractors who are not bound by collective agreements. The term “loyalty” is therefore misleading in this context. There is no actual extension of the normative effect of a collective agreement on employment relationships, as is the case with a declaration of general applicability in accordance with Section 5 TVG or an extension by means of an ordinance in accordance with the Posted Workers Act .

Tariff compliance regulation and compliance declaration

Finally, a distinction has to be made between the statutorily standardized tariff compliance regulation that public bodies should only award contracts to those contractors who submit a tariff compliance declaration and the declaration by the contractor himself, which becomes part of the contract.

Legislative history in Germany

Until the Rüffert judgment

In Germany, constitutive collective agreement declarations were first required in the 1990s by public clients in several countries without a legal basis in accordance with administrative regulations. This was done with the aim of countering unemployment in the construction sector with a simultaneous decline in collective bargaining coverage , i.e. a falling number of collective bargaining agreements.

In Berlin , for example, the local construction companies that were bound by collective agreements at West German wage levels were under pressure from competitors in Brandenburg , for whom no or less “expensive” East German collective wage agreements applied. Berlin companies had also moved their headquarters to Brandenburg because of the tariffs.

The Berlin administrative practice called the Federal Cartel Office on the scene, which declared these tariff compliance regulations to be antitrust. The State of Berlin appealed against this decision to the Kammergericht .

With the transposition of the procurement law into the law against restraints of competition on the basis of the European procurement directives for contracts above certain thresholds by the procurement law amendment act on January 1, 1999, "other or more extensive [than those provided in the law] requirements" for contractors were only allowed due to an over a federal or state law is drawn up: According to § 106 para. 4 2nd Hs. GWB a. F. the Berlin administrative practice had to be poured into legal form.

On this basis, the Berlin Public Procurement Act was passed in 1999 . Bavaria and Saarland followed in 2000.

In the meantime, the Court of Appeal had confirmed the Bundeskartellamt's view of the antitrust law violation of the Berlin tariff loyalty practice; Berlin then appealed to the Federal Court of Justice . There the procedure was negotiated on the basis of the new Berlin Procurement Act. The Cartel Senate of the BGH had doubts about the constitutionality of the law, suspended the proceedings and submitted the Berlin Procurement Act to the Federal Constitutional Court for review in accordance with Article 100, Paragraph 1, Clause 2 of the Basic Law .

In 2001, Saxony-Anhalt introduced tariff compliance, but abolished it a year later after a change of government.

In 2002, a collective agreement regulation was discussed at the federal level through the introduction of a § 5a collective agreement law and a federal collective agreement law , whereby for the first time not only the construction industry but also local public transport should be covered. However, the draft failed in the Federal Council because of this and the question of how the regulation should deal with the problem of collective bargaining conflict, i.e. if two different collective agreements can be applied to one employment relationship.

In the following years, Lower Saxony, Bremen, North Rhine-Westphalia and Schleswig-Holstein enacted collective bargaining laws, which for the first time also contained subcontractor clauses, in some cases also covered sectors other than construction and made various regulations regarding the selection of the relevant collective agreement.

In 2006, almost six years after the BGH's order for reference, the Federal Constitutional Court ruled that the Berlin tariff loyalty regulation was compatible with the Basic Law and therefore legal.

Shortly afterwards, the North Rhine-Westphalian tariff loyalty law was evaluated after a change of government and abolished on the grounds that it did not meet its goal.

In the same year, the Higher Regional Court of Celle submitted the Lower Saxon collective wage agreement to the European Court of Justice following preliminary ruling proceedings under Art. 234 EC Treaty, old version, because it considered it to be incompatible with the freedom to provide services : A company had violated the Lower Saxony collective agreement and was now suing the one imposed on it Contractual penalty. On April 3, 2008, the ECJ ruled in the so-called Rüffert ruling that the Lower Saxony state procurement law violated the Posting of Workers Directive and the freedom to provide services and was therefore inapplicable. As a result, Lower Saxony would only have been able to stipulate compliance with the local tariff if it had been considered a minimum wage for all employees through a state-wide declaration of general binding force ( declaratory tariff compliance regulation).

In March 2008, Berlin had extended the applicability of the public procurement law to all industries and introduced such a state-wide minimum wage for employees working on public contracts in the amount of € 7.50.

Lower Saxony and Hamburg reacted to the ruling by only demanding declaratory tariff compliance declarations. The other countries did not change or abolish their collective agreement laws and instead issued administrative regulations that prohibit the application of collective agreement regulations. The illegality of this procedure was without consequence.

The amendment to Section 97 (4) GWB by the law on the modernization of public procurement law of April 20, 2009 had no effect on compliance regulations, as it merely specified the previous legal situation. The EC Regulation 1370/2007 on public passenger transport services by rail and road, which came into force on December 3, 2009 , lays down transparency provisions for “social standards”, including tariff compliance regulations, in Art. 4 (5) sentence 2.

More recent developments since 2009

Newer collective bargaining laws take into account the Rüffert case law of the European Court of Justice. They provide that public contracts are only awarded to companies that pay their employees the applicable minimum wages according to the Posted Workers Act . Such minimum wages currently exist in a number of sectors of the economy, for example in construction, in the building cleaning trade and waste management, and apply to all employees in Germany anyway. So it is a matter of declaratory tariff compliance regulations.

In addition, some of the collective bargaining laws stipulate that employees otherwise have to pay the statutory minimum wage (Hesse) or a certain award-specific minimum wage per hour (so-called minimum award wage , between € 8.00 in Brandenburg and € 9.18 in Schleswig-Holstein ). This also applies if a company uses subcontractors or if the company or a contracted subcontractor uses employees of a lender to carry out the public contract ( subcontractor clause ).

Special regulations apply to public transport by road and rail in the states of Baden-Württemberg, Brandenburg, Bremen, Hesse, Rhineland-Palatinate, Lower Saxony, North Rhine-Westphalia, Schleswig-Holstein and Saxony-Anhalt. Mostly after consulting an advisory board with employer and employee representatives, representative collective agreements are established by administrative regulation, compliance with which a public contractor for public transport by road and rail must comply with during the term of a public contract.

In 2014 there were tariff loyalty laws with different regulations in Baden-Württemberg, Berlin, Brandenburg, Bremen, Hamburg (no constitutive tariff compliance in public transport), Hesse, Mecklenburg-Western Pomerania, Lower Saxony, North Rhine-Westphalia, Rhineland-Palatinate, Saarland, Saxony-Anhalt ( no minimum wage), Schleswig-Holstein and Thuringia (no minimum wage). There are no collective bargaining regulations in Bavaria and Saxony.

The legal regulations differ, among other things, in the threshold value above which the law takes effect, in the industries concerned, the determination of the minimum wage (e.g. by law or a commission), the selection of the relevant collective agreements, the application of the equal-pay principle , and the validity of other regulations, such as certain regulations of the International Labor Organization and the promotion of women and training.

The European Court of Justice ruled on the German minimum wages in 2014 in the Bundesdruckerei ruling (not applicable to foreign subcontractors) and in 2015 in the Regiopost ruling ( compatible with the procurement coordination directive and freedom of services).

Collective agreement regulations in other countries

In the USA and Great Britain there are similar regulations at the regional level in order to counter the problem of precarious working relationships despite existing minimum wage laws.

Web links

Collective agreement laws of the German states

Individual evidence

  1. ^ Löwisch, Manfred : Labor law. 8th edition, Cologne 2007, ISBN 978-3-8041-4765-2 , paragraph 281.
  2. ^ Kling, Michael: On the admissibility of non-awarding regulations in the law of public procurement. Undenheim 2000, page 326.
  3. ↑ ECJ , judgment of April 3, 2008, case C-346/06 (Dirk Rüffert / Land Niedersachsen), Collection 2008, I-01989 , Official Journal C 128/9 of May 24, 2008 (PDF) .
  4. ^ Gregor Thüsing, Jörn Axel Kämmerer: New Effects of the Collective Agreement: Possibilities of a Tariftreuegesetz, in: Tarifautonomie im Wandel, Cologne 2003, p. 236 ff .; Thorsten Schulten, Hamid Azari-Rad, Peter Philips, Mark J. Prus: Introduction: Prevailing Wage Regulations and Public Policy in the Construction Industry, in: Dies. (Ed.): The Economics of Prevailing Wage Laws, Burlington 2005, p. 11; Michael Pawicki: Collective bargaining regulations in Germany - a current overview, WSI-Mitteilungen 2008, pp. 184, 185.
  5. ↑ after Azari-Rad / Philips / Prus, 12.
  6. ↑ Otto Ernst Kempen: "Tariftreue-declarations" - A violation of competition and public procurement law ?, in: Law and social work world, Festschrift für Wolfgang Däubler, Frankfurt am Main 1999, p. 517; Gregor Thüsing, in: Herbert Wiedemann, Collective Agreement Act, 7th Edition Munich 2007, Appendix 2 to Section 5, Rn. 21 ff.
  7. ↑ Eckhard von Voigt: The consideration of non-awarding criteria according to the Berlin awarding law. Journal for Procurement Law 1999, p. 291.
  8. ↑ Martin Burgi: Assignment alien purposes and constitutional law. New journal for construction law 2001, pp. 64, 65; Carsten Hormann: On the legal nature of public procurement law. Procurement law 2007, pp. 431, 436.
  9. ↑ Jörn Axel Kämmerer, Gregor Thüsing: Tariff compliance in public procurement law. ZIP 2002, pp. 596, 605 f .; Volker Dobmann: The Declaration of Compliance with the Award of Public Contracts , Baden-Baden 2007, p. 158; Otto Ernst Kempen, Ulrich Zachert: Collective Agreement Act , 4th edition, Frankfurt am Main 2005, § 1 TVG, Rn. 746; § 5 TVG, Rn. 63.
  10. ↑ Meinrad Dreher: Comment on BGH, decision of January 18, 2000 - KVR 23/98, Juristenteitung 2000, p. 519; Achim Seifert: Legal problems of collective bargaining declarations, Zeitschrift für Arbeitsrecht 2001, pp. 1, 4; Michael Kling: Collective Pay Loyalty and Freedom to Provide Services - On the primary law assessment of § 3 Collective Loyalty Act of the Federal Government i. d. F. the draft law of the federal government of December 12, 2001, EuZW 2002, 229, fn. 1; Hans Arnold: The European law dimension of the constitutive tariff compliance declarations in German procurement law , Frankfurt am Main 2004, p. 17; Friedhelm Reichert: Mandatory public procurement law to pay collective wages , Berlin 2007, p. 39.
  11. ↑ Franzen, in: Rudi Müller-Glöge, Ulrich Preis, Ingrid Schmidt (Ed.): Erfurt Commentary on Labor Law , § 4 TVG, Rn. 1.
  12. ↑ Volker Dobmann: Declaration of compliance with collective bargaining agreements for the award of public contracts, Baden-Baden 2007, p. 22.
  13. ↑ Martin Henssler, in: ders., Josef Willemsen, Heinz-Jürgen Kalb: Labor Law Commentary , § 5 TVG, Rn. 40; Otto Ernst Kempen, Ulrich Zachert: Collective Bargaining Act , 4th edition, Frankfurt am Main 2005, § 5 TVG, Rn. 63.
  14. ↑ Law to change the legal basis for the award of public contracts of August 26, 1998, Federal Law Gazette I, 2512.
  15. ↑ GVBl. Berlin, July 16, 1999, 369.
  16. ↑ Law on the award of construction contracts in the Free State of Bavaria of June 28, 2000, BayGVBl. dated June 30, 2000, 364.
  17. ↑ Law on the award of construction contracts in Saarland of 23 August 2000, SaarlABl. dated November 3, 2000, 1846.
  18. ^ KG, decision of May 20, 1998, Kart 24/97, ZIP 1998, 1600.
  19. ↑ BGH, decision of January 18, 2000 , Az.KVR 23/98, full text.
  20. ↑ GVBl. LSA of July 4, 2001, 234.
  21. ↑ GVBl. LSA of August 16, 2002, 358.
  22. ↑ BR-Drs. 438/00.
  23. ↑ BR-Drs. 322/01; BT-Drs. 14/8285 of February 20, 2002.
  24. ↑ BT-Drs. 14/7796 of December 12, 2001.
  25. ↑ State procurement law of September 2, 2002, NdsGVBl. dated September 6, 2002, 370.
  26. ↑ Procurement Act for the State of Bremen of December 17, 2002, BremGBl. dated December 19, 2002, 594.
  27. ↑ Act on collectively agreed remuneration for public contracts in the state of North Rhine-Westphalia of December 17, 2002, GVBl. NRW from January 15, 2003, 8.
  28. ↑ Act on collectively agreed remuneration for public contracts of March 7, 2003, SchlHGVBl of March 27, 2003, 136; Correction in SchlHGVBl. from May 28, 2003, 283.
  29. ↑ BVerfG, decision of July 11, 2006, Az. 1 BvL 4/00, BVerfGE 116, 202 .
  30. ↑ GVBl. NRW from November 20, 2006, 515.
  31. ↑ Dobmann, Veraberecht 2007, 167, fn. 24.
  32. ↑ now Art. 267 TFEU .
  33. ↑ OLG Celle, decision of August 3, 2006 , Az. 13 U 72/06, full text.
  34. ↑ ECJ, judgment of April 3, 2008 , Az. C-346/06, full text.
  35. ↑ GVBl. Berlin, March 29, 2008, 80; Correction in GVBl. Berlin, May 15, 2008, 112.
  36. ↑ NdsGVBl. dated December 22, 2008, 411.
  37. ↑ HbgGVBl. dated December 23, 2008, 436.
  38. ↑ The administrations of the federal states argued that due to the primacy of application of Community law, it was legal to override a law by means of an administrative regulation. However, this is only applicable to the extent that European law applies to the laws at all: The freedom to provide services requires a possible cross-border situation, and the Posting of Workers Directive is also only relevant in cases with a foreign element. Therefore, the corresponding administrative regulations are unconstitutional because of the priority of the law from Article 20, Paragraph 3 of the Basic Law, also Hanau, NZA 2008, 751 f .; Thüsing, NZA 2009, 183, 184.
  39. ^ Sarter, Eva Katharina / Sack, Detlef / Fuchs, Sebastian (2014): Public Procurement as Social Policy? An introduction to social criteria in public procurement in Germany. Working Paper, Working Paper Series 'Comparative Governance', Bielefeld University. http://www.uni-bielefeld.de/soz/powi/pdf/WPCG01_Sarter_Sack_Fuchs_Public_Procurement_Aug14.pdf
  40. ^ Achim Seifert: Legal problems of tariff declarations, Zeitschrift für Arbeitsrecht 2001, p. 1; Gregor Thüsing, Jörn Axel Kämmerer: New Effects of the Collective Agreement: Possibilities of a Tariftreuegesetz, in: Tarifautonomie im Wandel, Cologne 2003, p. 236 ff .; Thorsten Schulten, Michael Pawicki: Collective bargaining regulations in Germany - a current overview, WSI-Mitteilungen 2008, pp. 184, 189.