The strikes of the divisional unions, be it train drivers or pilots, had made the problem visible: professional groups in key positions can achieve a significant impact within their industry with little effort. The legislature has therefore tried to break their power with the Collective Bargaining Act. The regulation should give priority to the collective agreement of the majority union. The Federal Constitutional Court largely approved the law in 2017, albeit with stomach ache. So it was very interesting to see how the European Court of Human Rights would see it; after all, trade unions also enjoy the protection of the European Convention on Human Rights. This Tuesday, the court has now pronounced its verdict – the German law is compatible with the convention.
Among others, the Marburger Bund and the train drivers’ union (GDL) complained because they saw their position weakened. Not entirely wrong, the regulation was based on a political compromise between the DGB and the Confederation of German Employers’ Associations. According to the assessment of the Federal Constitutional Court, the law had clearly overshot the mark, to the detriment of the little ones. With a great deal of interpretative effort, Karlsruhe tried to mitigate the harmful effects of the law, such as the displacement effect that emanates from the majority collective agreements.
In this soft version, the Human Rights Court has now confirmed the Collective Bargaining Act. He accepts the starting point of the regulation, which ultimately describes a dilemma. On the one hand, small trade unions also enjoy the freedom of the Basic Law and the Human Rights Convention. On the other hand, they could also use their bargaining power from their key positions to negotiate special agreements to the detriment of other employees.
The compromise that the German legislature found to balance these positions is proportionate from the point of view of the Court, because the small trade unions still retain a core of rights and opportunities. Mainly because they trace the collective agreements of the majority union, so they can make their successes their own. At the same time, the court weighted other minority rights that the constitutional court had granted them, such as a right to a hearing, on their credit side. So one can speculate: Without the tutoring from Karlsruhe, the collective bargaining law would have had poor chances before the Strasbourg court – especially since two of the seven Strasbourg judges voted no.
Meanwhile, on the same day, the Constitutional Court itself published a decision on small trade unions. There the question is when a union is collectively bargained. The “Berufsgewerkschaft eV” (DHV), which the Federal Labor Court (BAG) had denied collective bargaining capacity last year, had sued because it did not have enough assertiveness.
From the point of view of the BAG, the degree of organization plays a role here. At the DHV, this degree of organization was well below the threshold of 1.6 percent that the BAG had once formulated. The reason for this was a change in the statutes from 2014. The DHV itself had extended its collective bargaining responsibility to numerous sectors, from the meat industry to tour operators. And that put them in the dilemma of small trade unions: they want to gain members by cultivating new fields, but at the same time weaken their own assertiveness because they are inevitably less organized in their newly formulated areas of responsibility. In the end, as with the DHV, there is a risk of losing the collective bargaining capacity.
The Constitutional Court has no objection to the BAG’s line. It ensures that only associations are involved in collective bargaining that “have a minimum of negotiating weight and thus a certain assertiveness against social opponents”.