FAQ
Status: 05.07.2022 1:42 p.m
The Collective Bargaining Act regulates that, in cases of doubt, only the collective agreement with the union with the largest number of members applies in a company. The European Court of Human Rights has ruled: It must be applied.
What does the Collective Bargaining Act regulate?
It applies to the situation that the employees in a company are organized in different unions – for example, many train drivers are in a different union than the rest of the train crew. If these unions cannot agree on a uniform wage agreement with the company, according to the law, the contract of the union with the most members in the company applies – regardless of which occupational group they come from. The collective agreement of the smaller union will be superseded.
This was to prevent factories being paralyzed because the strike of one union was followed by the strike of the next. Instead, the unions should sit down together at a table beforehand and coordinate their interests. Critics saw the law passed in 2015 as an attempt to stop the strikes by the train drivers’ union GDL, which had brought some rail traffic to a standstill in 2014.
Is this a violation of the human rights convention?
No, according to the European Court of Human Rights (ECtHR). Article 11 of the European Convention on Human Rights – like the Basic Law – guarantees the right to form trade unions. This includes the right to collective bargaining. However, there is no right to conclude a collective agreement.
Ultimately, the Court considers the Collective Bargaining Act to be proportionate. The German legislature has some leeway in the design of such laws. In addition, the law has legitimate aims: namely, to facilitate compromise in a workplace and, above all, to ensure that fair collective bargaining is possible – by preventing a union representing key employees from negotiating a collective agreement that is to the detriment of the other employees.
The doctors’ union Marburger Bund, the train drivers’ union GDL and the civil servants’ union had argued that the law would mean that their negotiating position with employers would be weakened.
What did the Federal Constitutional Court decide?
Karlsruhe also had to review the Collective Bargaining Act. At the time, several smaller unions such as the GDL, the pilots’ association Cockpit and the Marburger Bund had complained. From their point of view, the regulation violates the freedom of Article 9 Paragraph 3 of the Basic Law to form trade unions and also the right of employees and employers to conclude collective agreements free of state intervention – keyword: collective bargaining autonomy.
But the Federal Constitutional Court did not overturn the law in its 2017 judgment. The regulation interferes with the freedom of association because it may make it more difficult for the weaker union in the company to recruit and mobilize members. The right to strike is not in danger. And the legislature is authorized to create structures that bring about a fair balance between the interests of all employees in a company, it said at the verdict.
As a result, the Federal Constitutional Court only requested improvements to protect small professional groups in one place. Otherwise, it relied on a “restrictive interpretation” to take the “severity” out of the regulations. According to this, the collective bargaining unit should be at the disposition of the collective bargaining parties. This means that competing unions should be able to agree with the employer not to apply the law.
Have such agreements been concluded?
Yes. In December 2017, the Marburger Bund agreed with ver.di to demand from employers that the collective agreement of the other union would not be superseded. The two unions also assured each other 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 are always dependent on the other union and you never know how things will develop there.”
There was also an agreement between the group and the GDL at Deutsche Bahn, which ensured that the collective agreements of the GDL were also applied, although the union only had the majority of the members in a few railway companies. But the agreement expired at the end of 2020.
Does the Collective Bargaining Act have no meaning at all in practice?
Yes it has. “There are a few company constellations where a minority union does not even have to start because of the law on collective bargaining,” says labor law expert Florian Rödl from the Free University of Berlin. In addition, it is not clear how conflicts between competing unions will continue to escalate. “The potential has not yet been exhausted. What happens if the law should really be applied and then members have to be counted? It is still unclear how this is supposed to work.”
A problem that is now relevant for the railways. There, the railway and transport union (EVG) has more members in most of the approximately 300 railway companies. In a good 70 companies, however, the majorities between EVG and GDL are unclear.