Germany: Right to strike and representativeness of small trade unions

A heated debate has been sparked by a draft bill to re-establish the principle of ‘one establishment, one collective agreement’. This would mean that, in companies where there are overlapping collective agreements, only the agreement concluded by the majority trade union would apply. The bill is expected to become law in May 2015.

Bill on ‘Collective bargaining unity’ stirs debate on trade union rights

The draft bill, introduced in the German parliament in March 2015, amends the German Collective Agreement Act (Tarifvertragsgesetz). Although it states that only one collective agreement can apply in any one establishment, it stipulates that any minority trade union should be consulted and has the right to co-sign the majority union’s agreement. According to the Federal government, the bill strengthens the autonomy of collective bargaining by preventing competing trade unions from obstructing business operations .

However, critics in parliament and in trade unions fear the law will damage bargaining autonomy by affecting the right of other smaller unions to conclude collective agreements. They also argue that the act will effectively restrict the right of small trade unions to strike if the labour courts outlaw industrial action in support of collective agreements they are campaigning for, but which are likely to be superseded by an agreement negotiated by a bigger union. Legal experts are also divided on whether the bill undermines the constitutional guarantee of the freedom of association. The German Civil Servants Association and Wage Union (dbb) and some non-affiliated occupational unions have already said they will oppose the bill in the Federal Constitutional Court (Bundesverfassungsgericht).

Background

Until 2010, collective bargaining was determined by the principle that competing wage agreements should not exist at establishment level. Only the most specific and relevant agreement (Tarifeinheit) could cover an establishment’s employees. However, on 23 June 2010, the Federal Labour Court ruled that an employee could be covered by a collective agreement concluded by his or her own trade union and that several collective agreements could exist at establishment level (Tarifpluralität). The bill on ‘Collective bargaining unity’ (Tarifeinheitsgesetz) is intended to re-establish the previous ‘one establishment–one agreement’ principle.

However, different wage agreements concluded by competing trade unions and covering the same group of workers in one establishment are very rare in Germany. This is due to a tradition of trade union cooperation and the dominant position of the trade unions represented by the German Confederation of Trade Unions (DGB). DGB’s eight affiliates represent a total of 6.2 million workers, while the dbb, the second largest peak-level organisation, has 43 affiliates representing a total of 1.28 million workers. The Christian Federation of Trade Unions (CGB) has 14 affiliates with a total of 273,000 members.

Most dbb members – who are generally in small occupational trade unions – are in the public sector and, through dbb, cooperate with the United Services Union (ver.di), a DGB-affiliate with 2.1 million members, in concluding public sector agreements. In contrast, the sectoral affiliates of DGB and the small Christian trade unions have a long history of competition in, for example, the craft sectors.

Competition has also increased between DGB unions and occupational trade unions in sectors affected by privatisation and restructuring, such as civil aviation, the railways and the hospital sector. Since the mid-2000s some occupational unions have increased their membership and have concluded collective agreements independent of the multi-employer or single-employer agreements concluded by the DGB affiliates. An example is the separate collective agreements negotiated between airline Lufthansa and:

  • ver.di;
  • the Cockpit Association (VC), a pilots’ union;
  • the Union of Air Traffic Controllers (GdF);
  • the Independent Organisation of Flight Attendants (UFO);

There is also the example of the separate collective agreements negotiated between railway company Deutsche Bahn and:

  • the Railway and Transport Union (EVG), a DGB affiliate;
  • the German Engine Drivers’ Union (GDL), a dbb member.

The Federal Labour Minister presented the bill on ‘Collective Bargaining Unity’ in autumn 2014. It was introduced against the background of a protracted dispute within Deutsche Bahn involving the two competing trade unions EVG and GDL.

Main issues

The law touches on the right of trade unions to conclude collective agreements and on their right to organise strikes. Under legislation and case law, all trade unions have the right to conclude collective agreements. The only conditions set by case law are that, to conclude valid collective agreements, trade unions must be:

  • independent from employers;
  • democratic;
  • strong enough to bring the employer to the bargaining table and to enforce the application of the concluded agreement.

The collective agreement must also be concluded within the organisational domain of the union as defined by its rule book. The introduction of the new bill means that, in the case of competing collective agreements, membership figures at establishment level are crucial in defining the validity of a collective agreement. This is a new, more numerical understanding of ‘representativeness’. However, it begs a number of procedural questions such as:

  • how to define the bargaining unit;
  • who to count as a member;
  • how to count membership at establishment level.

It is clear that this might raise legal problems which will eventually need to be solved in the labour courts.

There is no law governing the regulation of strikes or lockouts. The German Constitution – apart from its general guarantee of the freedom of association – mentions neither. Case law has been developed by the Federal Labour Court in subsequent rulings. The fundamental legal principle governing disputes is that industrial action must pursue an aim that can be regulated by collective agreement. Strikes and lockouts are only lawful in the context of collective bargaining. There is an obligation to maintain industrial peace (Friedenspflicht) for the duration of a collective agreement. During this time neither strike nor lockout are allowed as a means to pursue issues laid down in the collective agreement. To be lawful, industrial action must be ‘proportional’ to the goals pursued. In the debate on the bill the government made clear that, although there can be no direct interference with the right to organise strikes, it nevertheless believes that labour courts will have to take the new legal situation into consideration when deciding whether a specific strike involving a competing collective agreement is appropriate.

There is a broad consensus among industrial relations experts that the number of occupational unions which were able to conclude independent collective agreements has not increased since the 2010 ruling of the Federal Labour Courts.

Reactions by employers and trade unions

The Confederation of German Employers' Associations (BDA) has stated that legislation is needed to stop business being put at risk (in German) by industrial action and growing trade union competition. However, the BDA says employers appreciate collective bargaining because collective agreements, while they last, guarantee industrial peace. It adds that the draft act does not impinge on any constitutional trade union rights as all unions are free to cooperate in concluding agreements and, if they don’t, the most representative agreement is implemented.

The DGB takes a rather more cautious view, as its affiliates are divided on the issue. On 21 November 2014, the DGB stated that, generally speaking, all affiliates appreciate initiatives intended to support the principle of ‘one establishment–-one agreement’ (in German). However, they see an urgent need for some amendments to the draft bill and disagree on whether it affects their right to organise strikes. Suggested amendments are, for example, the definition of the entity in question (establishment or company) and the procedure for counting the number of trade union members.

The German Metal Workers’ Union (IG Metall) and the Mining, Chemicals and Energy Industrial Union (IG BCE), the construction workers’ union (IG BAU) and EVG support the legislation albeit with some qualifications. They do not consider that the bill affects their right to strike, and expect that this question will be decided by the labour courts. The United Services Union, the German Union of Education (GEW) and the Trade Union of Food, Beverages, Tobacco, Hotel and Catering and Allied Workers (NGG) stress that they support the principle of ‘one establishment–one collective agreement’, but that they believe this should be achieved by inter-union negotiation and not enforced by legislation. They fear that the right to strike will be indirectly restricted by the bill.

The dbb strongly opposes the bill (in German), saying that it undermines the constitutional right of freedom of coalition, and that it will interfere with trade union solidarity and cooperation. 

The CGB) says, in a position paper, that the bill will consolidate the predominant position of DGB-affiliates (in German).

The draft act is opposed by Germany’s two opposition parties. Die Linke stresses the point that the act restricts small unions’ right to strike and that government should focus instead on employers’ lack of interest in reaching and applying collective agreements. The Greens (Grüne/Bündnis 90) say that the problems are exaggerated (in German) and that the government should not intervene in issues of trade union cooperation and solidarity. 

On 2 March 2015, just before the start of the parliamentary debate, a report published by the CGB claimed unpublished advice from the parliament’s scientific service (Wissenschaftlicher Dienst) suggested that the draft is likely to conflict with the German Constitution, and is partly based on incorrect assumptions about the extent of strike activity by professional and occupational unions. However, this suggestion was rejected by the grand coalition parties.

The bill is expected to be passed by parliament in May 2015 and come into in force before the summer break. However, trade union confederation dbb and DGB affiliate ver.di are threatening to lodge a complaint of unconstitutionality.

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