Collective agreement

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The collective agreement in Germany is a contract between the collective bargaining parties within the framework of the constitutionally guaranteed collective bargaining autonomy . A comparable legal institution in Austria after the Labor Constitution Act of the collective agreement , the Swiss labor law of the collective bargaining agreement .

As an equivalent in Anglo-Saxon countries, the collective agreement between the labor market parties can be seen, although it is based on a completely different legal tradition.

According to German law, the Collective Bargaining Act, the collective bargaining agreement contains legal norms that regulate the content, conclusion and termination of employment relationships as well as issues relating to company law and works constitution (normative part) and define the rights and obligations of the parties to the collective bargaining agreement (part of the law of obligations). The collective bargaining parties include individual employers or employers' associations on the one hand and trade unions (for employees ) on the other.

Collective agreement

In 2015, around 51 percent of employees in western Germany worked in a company that was subject to an industry collective agreement, in eastern Germany around 37 percent. Company collective agreements applied to 8 percent of the West German and 12 percent of the East German employees. Since 1998 there has been a downward trend in the collective bargaining agreement of employees in both western and eastern Germany.

Importance of collective bargaining law

One of the key elements of the collective agreement is that it compensates for the legal imbalance that exists in the labor market in an individual employment contract between the contracting parties in favor of the weaker contractual partner to be protected, the employee. In the collective bargaining law itself there is no longer this special protection to the advantage of only one of two contractual partners. In Germany, both parties to the collective bargaining agreement - the trade unions and the employers' associations - as coalitions of their members enjoy the same protection and the same rights according to Article 9 of the Basic Law for the Federal Republic of Germany . Your rights regarding the use of industrial action are complementary: "The strike corresponds to the lockout, regardless of whether it is decided by an employers' association and carried out by the individual employers or whether one or more employers carry it out." In 1980 the Federal Labor Court ruled in a statement of Basic judgment stated: "Collective bargaining without the right to strike would in general be nothing more than 'collective begging'."

With the collective bargaining autonomy and the corresponding collective bargaining law, the state grants the collective bargaining parties a margin of autonomy to develop the rules of their cooperation autonomously. You can regulate this faster and more flexibly than would be possible with greater involvement of the state.

Basics of collective bargaining law

The legal framework in Germany is laid down in the Collective Bargaining Act , TVG for short, of April 9, 1949.

A collective agreement applies to an employment relationship directly (i.e. without its validity still having to be contractually agreed) and mandatory (with the result that contractual deviations to the detriment of the employee are ineffective) if both parties to the employment contract are subject to collective bargaining agreements . On the other hand, deviations in favor of the employee ( favorability principle ) are permitted. In order for the collective agreement to be applicable to the employment relationship, the company must also fall within the technical and local area of ​​application, the employee within the personal area of ​​application of the collective agreement.

The collective bargaining agreement results from membership in one of the collective bargaining parties (employers' association or trade union ). The employer who concludes a collective agreement directly with the union is also bound by collective bargaining agreements. As an exception, an employer may not be bound by collective bargaining agreements despite membership in the employers' association if the association's statutes provide for membership without collective bargaining (so-called OT membership ) and the employer has this form of membership.

Regardless of this, the validity of a collective agreement or a specific collective agreement can be agreed at any time in an individual contract using a so-called reference clause. A distinction is made between dynamic clauses (referring to the respective collective agreement, also known as the equality clause) and static clauses (referring to the collective agreement applicable at the time the contract is concluded). In case of doubt, what is wanted must be clarified by the labor court by way of interpretation.

A special case is the generally binding declaration of a collective agreement. A generally binding collective agreement is to be applied to all employment relationships within the scope of the collective agreement, regardless of the will of the contracting parties.

Collective agreements must be made in writing to be effective ( Section 1 (2) TVG).

Resignation from the employers' association

Leaving the employers' association, with which an association collective agreement - often a general collective agreement - has been concluded, does not immediately terminate the bond with the collective agreement . Rather, the resigned employer and the union remain bound by the collective bargaining agreement up to the point in time at which it ends due to a termination on the part of the employers' association or the union (so-called subsequent binding, Section 3 (3) TVG). Until then, the employer who has resigned continues to be subject to the collective bargaining agreement , which means that industrial action is not permitted (disputed).

After the collective agreement has expired, it continues to have an effect until a new agreement has been made (after-effect, Section 4 (5) TVG). This means that the working conditions that were regulated in the collective agreement continue to apply statically. The new agreement can either consist of a new collective agreement or an amendment to the employment contract (see also termination notice ). The aftermath only affects those employees who were already employed at the end of the collective agreement and are members of the respective trade union.

Operations Transfer

If the employment relationship of an employee is transferred to the acquirer in the event of a business transfer, the collective agreements applicable in the seller's business, if the acquirer is not bound by collective bargaining for his part, become part of the individual employment contract in accordance with Section 613a, Paragraph 1, Clause 2 of the German Civil Code , and may not be before the expiry of a Be changed every year. The collective agreement only continues to apply to the extent that it was in effect at the time of the transfer of operations; the employee does not take more to the changes in the collective agreement in part made after transfer of business because it so far but just at the collective bondage missing the employer.

Treatment of employees not bound by collective agreements

Employers bound by collective bargaining agreements usually treat all employees of a company, regardless of their actual collective bargaining coverage, according to the rules of the collective agreement. This is usually done by means of a so-called equality agreement, i.e. a clause that refers to the regulations of the collective agreement in the individual employment contract and thus gives them individual contractual effect. The main reason for this is not to give employees any additional motivation to join the union, as the employee's union membership is a prerequisite for the mandatory application of a corresponding collective agreement.

So-called barring clauses (or closed shop clauses), according to which a company may only grant the conditions of the collective agreement to (unionized) employees, or even employ only such employees, would be inadmissible in collective agreements . According to the unanimous opinion, such a regulation violates the negative freedom of association (Art. 9 GG). The effectiveness of so-called differentiation clauses, which give organized workers an advantage over non-organized workers, is controversial. An advantage in maintaining the job with downsizing is probably inadmissible here, while purely financial advantages are probably permissible.

Deviations

Deviations from collective bargaining norms to the detriment of the employees are only permitted if this is permitted in the collective bargaining agreement by means of an opening clause . Otherwise the indispensability or the favorable principle of a collective agreement applies . Deviations in favor of the employee are permitted through individual contractual provisions, but not through company agreements , Section 77 (3) BetrVG. In some cases, collective bargaining agreements also contain express regulations for the concrete implementation of more general collective bargaining provisions in operational practice, e.g. B. through supplementary company agreements. One example is the implementation of the performance fee in the public service within the framework of § 18 TVöD .

Certain employees with special qualifications are paid as so - called non-tariff employees with an AT contract that is above the highest tariff group of the respective collective wage agreement. In practice, for example, employment contracts of employees of non-collective bargaining group subsidiaries are referred to as AT, even if their remuneration and conditions are significantly worse than in the corresponding collective bargaining agreement.

Tariff autonomy

Collective bargaining autonomy means that collective bargaining agreements are negotiated solely by the collective bargaining parties themselves. Influence by government or administration, legislature and jurisdiction is not permitted. Rather, government agencies must maintain their neutrality. The collective bargaining autonomy results from Art. 9 Paragraph 3 of the Basic Law for the Federal Republic of Germany .

The primary importance of collective bargaining autonomy is also expressed in Section 77 (3) BetrVG. According to this regulation, employers and works councils are not allowed to regulate wages and other working conditions that are “ regulated by collective agreements or are usually regulated” by works agreements. In these matters, the parties to the company have no possibility of agreeing regulations with normative effect for the employees. This also applies to employers who are not bound by collective bargaining agreements, as “competition regulations” in the form of works agreements could also disrupt the functioning of collective bargaining autonomy. Violations, however, lead to the ineffectiveness of the company agreement, which, however , can still take effect through reinterpretation .

Content of collective agreements

The collective agreement rights and obligations are regulated the negotiating parties ( of debt part -., For example, Peace , and exposure requirement).
It contains beside and above all legal norms on the content (including many so-called. Limitation periods ), the establishment and termination (z. B. notice periods ) of working conditions and rules for operational and works constitution issues ( normative part ). Collective agreements contain, for example, provisions on the following points:

Types of collective agreements

Collective agreements can be differentiated according to various delimitation criteria.

Differentiation according to parties on the employer and employee side

The distinction between parties results largely from the TVG , even if the terms are not specified there, so that there are sometimes inconsistent terms in the literature and case law.

  1. The Association collective agreement ( wage agreement ) will be concluded between the union and employers' association which is issued for a specific industry and for a spatially defined collective agreement district, which the Federal Republic of Germany as a whole or - recorded a branch - often. It is still the most common type of collective bargaining agreement for differentiating between parties.
  2. The company-related collective agreement is also concluded between the union and the employers' association, but only applies to a specific company.
  3. The company collective agreement (in-house collective agreement) is concluded between the union and the company in which it is to apply.
  4. The multi-part collective agreement is concluded on one or both sides by several contractual partners, for example in the temporary employment sector, where there was a collective agreement with two employers' associations on the employer side and eight DGB unions on the employee side.
  5. The group collective agreement is concluded between a union and a group, with effect for the individual companies in the group. Depending on the structure, it is actually either a multi-part collective agreement or a company collective agreement with the parent company, which other group companies take over.

Differentiation according to subject matter

The distinction between subjects of regulation has developed from purely practical considerations. This distinction has no legal effect. The parties to the collective bargaining agreement are also completely free in the question of which regulation objects they summarize under which name in a contract.

  1. The wage and salary collective agreement (also remuneration and remuneration collective agreement ) regulates the amount of the wages in the individual wage groups or the basic wage. The term of this contract is typically relatively short, but it can also be up to 31 months.
  2. The wage and salary framework agreement (also unspecific and with an unclear demarcation from the general collective agreement: framework collective agreement) regulates the wage and salary groups in which the employees are usually classified according to their work content .
  3. The general collective agreement (also unspecifically referred to as a framework collective agreement, for example the federal framework collective agreement for construction) regulates all further working conditions, insofar as this is agreed by the parties to the collective bargaining agreement. Examples are vacation and notice periods. The term of collective wage agreements is usually either very long or indefinite and a termination is required in order to renegotiate the contract. Examples of general collective agreements are the TVöD and TV-L in the public sector and the federal framework collective agreement for the construction industry in the private sector.
  4. In individual cases, other collective agreements can affect a wide variety of items that have not been included in other collective agreements in specific individual cases. These can be, for example: capital-building benefits, job security, regulations on the use of temporary work or joint institutions of collective bargaining parties.

Tariff register

All collective agreements are in tariff registers registered. Tariff registers are public, anyone can see them. They are kept by the Federal Ministry of Labor and Social Affairs and by all federal states. In the federal states, the labor or social ministries are usually responsible.

literature

See also

Web links

Wiktionary: collective agreement  - explanations of meanings, word origins, synonyms, translations

Individual evidence

  1. ↑ Peter Ellguth / Susanne Kohaut: Collective bargaining agreements and company interest representation: Results from the IAB company panel 2015. In: WSI-Mitteilungen, year 69, 2016, issue 4, p. 284.
  2. ↑ Economic and Social Science Institute in the Hans Böckler Foundation / WSI Tariff Archive 2016: Statistical Pocket Book Tariff Policy 2016 , Graph 1.6.
  3. ^ BAG: Basic resolution of January 28, 1955; quoted from Thomas Blanke et al .: Collective Labor Law , Volume 2. Rowohlt, Reinbek 1975, p. 237.
  4. ↑ Federal Labor Court ruling v. June 10, 1980 - 1 AZR 168/79
  5. ↑ Sascha Dudzik: Differentiation clauses in collective agreements , GRIN Verlag, Norderstedt, 2006 ( online in the Google book search).
  6. ↑ See on the whole: Erfurter Commentary / Dieterich Art. 9 GG, Rn. 32-35.
  7. ↑ BAG, decision of February 24, 1987 - 1 ABR 18/85, Rn. 37 - BAGE 54, 191-210.
  8. ↑ BAG, judgment of January 24, 1996 - 1 AZR 597/95, Rn. 21-, BAGE 82, 89-101 = NZA 1996, 948.
  9. ↑ BAG, judgment of January 24, 1996 - 1 AZR 597/95, Rn. 19 f. -, BAGE 82, 89-101 = NZA 1996, 948.
  10. ↑ BAG, judgment of 23 August 1989 - 5 AZR 391/88 -, juris, 1st principle.
  11. ↑ Unless otherwise stated, the following section is based on Kempen / Zachert: Collective Agreement Act , 4th edition, Bund-Verlag, Frankfurt am Main, 2005.