Court rules that union employees may form their own trade union

In February 1998, Germany's Federal Labour Court ruled that employees of trade unions are allowed to form their own trade union.

On 17 February 1998, the first senate of the Federal Labour Court (Bundesarbeitsgericht, BAG) ruled that employees of trade unions are allowed to form their own trade union which may conclude collective agreements (BAG decision 1 AZR 364/97).

In the case, the court had to decide whether the railway workers' union Gewerkschaft der Eisenbahner Deutschlands (GdED) - affiliated to the German Trade Union Federation (Deutscher Gewerkschaftsbund, DGB) - was allowed to forbid its members to join an association of employees of trade unions. This association of trade union employees was founded in 1994 and seeks to regulate pay and other terms and conditions of employment by concluding collective agreements with GdED. Up until now, union employees have been covered by works agreements only.

GdED had forbidden its employees (all of whom are also GdED members) to join the association, and - in case of disobedience - threatened to expel and dismiss them. GdED had argued that its employees were already members of a trade union and therefore could not rely on Article 9 of the Basic Law (freedom to form coalitions, or freedom of association). Furthermore, their membership provisions and the duty of loyalty fixed in their employment contract would not allow them to strike.

The court rejected the arguments of GdED. According to the court's decision, the employees of trade unions have the right to form a coalition, even if they aim to conclude collective agreements and use strikes as a means of achieving them. However, the court supported the view that the employees had special duties of loyalty which would restrict the actions of the new association - eg concerning the right to strike. However, the court did not decide on the limits on these actions.