Collective Bargaining Act: still a matter for the courts


Status: 07/05/2022 08:09

One company – one collective agreement: this was the purpose of the Collective Bargaining Act. It should provide peace of mind in the company. Instead, it has led to years of controversy. Now the decision has to be made by the European Court of Human Rights.

Claudia Kornmeier, ARD Legal Department

What is regulated by the Collective Bargaining Act?

This applies to a situation where the employees in the company are organized in different unions – for example, many drivers are in a different relationship from the rest of the train crew. If these unions cannot agree on a unified wage agreement with the company, the law stipulates that the relationship with the largest number of members in the company applies – regardless of the professional group they come from. The collective agreement of the smaller union will be replaced.

This was to prevent the paralysis of factories, as one union’s strike was followed by a strike by another. Instead, unions should sit down together at the table beforehand and coordinate their interests. Critics saw the law passed in 2015 as an attempt to stop the strikes of the GDL train drivers’ union, which blocked some rail traffic in 2014.

What did the Federal Constitutional Court say?

Among others, several smaller unions such as the GDL, the Cockpit pilots association and the Marburger Bund doctors’ union have filed a constitutional complaint against the law. They were concerned about their assertiveness. From their point of view, the regulation infringed the freedom under Art. 9 sec. 3 of the Basic Law for the formation of trade unions. As well as the right of employees and employers to conclude collective agreements without state intervention – key word: autonomy of collective agreements.

“The court claims that the law serves legitimate purposes” – Claudia Kornmeier, SWR, dismissing the lawsuit against the Collective Bargaining Act

tagesschau24 11:00, 5.7.2022

But the Federal Constitutional Court did not repeal the law in a 2017 ruling. Regulation interferes with freedom of association as it can make it difficult for a weaker union within a company to recruit and mobilize members. The right to strike is not in danger. And the legislator is empowered to create structures that will ensure a fair balance between the interests of all employees in the company, the verdict stated.

As a result, the Federal Constitutional Court only asked for improvements to protect small professions in one place. Otherwise, it relied on a “restrictive interpretation” to remove “severity” from the rules. Accordingly, the collective bargaining unit should be at the disposal of the parties to collective bargaining. This means that competing trade unions should be able to agree with the employer not to apply the law.

Have such contracts been concluded?

Yes. In December 2017, the Marburger Bund agreed with ver.di to require employers not to replace the other union’s collective agreement. Both unions have also secured the right to negotiate collective agreements for their members that deviate from the provisions of the collective agreement of the other union. “Nevertheless, the law hovers over us like the sword of Damocles,” says Hans-Jörg Freese, spokesman for the Marburger Bund. “We’re always dependent on the other relationship and you never know how it will develop there.”

In the railroad, there was also an agreement between the group and the MMBs which ensured the application of the MMBs collective agreements, although the union had the majority of members in only a few rail companies. But the deal expired at the end of 2020.

So is the Collective Bargaining Act irrelevant in practice?

Yes, it does. “There are several constellations of companies in which a minority union does not even have to be formed because of the Collective Bargaining Act,” says labor lawyer Fabian Rödl of the Free University of Berlin. Moreover, it is not clear how the conflicts between competing unions will increase further. “The potential has not yet been exhausted. What if the law really needs to be applied and then the members have to be counted? It is still unclear how this is supposed to work. ‘

A problem that is relevant to the railways now. There, the Railroad and Transport Association (EVG) employs most of the workforce, mostly from around 300 rail companies. However, in the good 70 companies, the majority between EVG and GDL is unclear.

Violation of the human rights convention?

Regardless, the European Court of Human Rights still has to decide whether the Collective Bargaining Act violates the Human Rights Convention. Art. 11 also guarantees the right to form trade unions. Marburger Bund, the GDL train drivers’ union and the union of civil servants argue that the law will weaken their negotiating position with employers.

Rödl’s employment lawyer is relatively skeptical that the court will oppose the Collective Bargaining Act. “There is not much case law of the European Court of Human Rights on freedom of association.” As a rule, this gives the Member States some latitude. “And there are other convention states that regulate trade unions even more strictly than in Germany.”

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