The warning strike is a sub-case of the usual stoppage of work by employees in the form of a short strike in a company in a factual and temporal connection with ongoing collective bargaining (BAGE 28,295). The purpose of a warning strike is to use pressure to force collective bargaining or to revive deadlocked collective bargaining. A warning strike can take place without a ballot .
Strikes, including warning strikes, are guaranteed in Germany as a means of industrial action by the Basic Law. Art. 9 GG constitutionally protects the so-called collective bargaining autonomy and the measures that are necessary for this. The strike is a basic right to enforce collective bargaining demands.
The Bundesarbeitsgericht (BAG) has established that even when strikes the so-called Ultima-ratio principle applies (see BAG GS v. AP No. 43 to Art. 9 GG industrial action ), which states that industrial action only after failure of the collective bargaining be taken allowed to.
A formal declaration that the collective bargaining has failed is not required. The mere fact that trade unions are calling for warning strikes makes it clear that they currently regard the negotiations as having failed (BAG decision of June 21, 1988).
Participation in a legal (warning) strike does not constitute a violation of the employment contract. Measures by the employer for participating in a strike are prohibited. The employer on strike is therefore not allowed to give notice to the striking employee. After the end of the strike, there is a right to continued employment.
The employment relationship is suspended during the strike.
The employee does not need to perform any work. There is no entitlement to wages for the duration of the strike.