interview
The railway wants to stop the new rail strike in court. Can she succeed? Labor lawyer Lena Rudkowski is skeptical. However, the GDL’s “wave strikes” are new legal territory.
tagesschau.de: Do you think that the railway will be successful with its urgent lawsuit against the GDL?
Lena Rudkowski: How the court will decide is difficult to predict. In general, the Frankfurt Labor Court is known for placing a high value on the right to strike. It argues that in order for a strike to be legally restricted, it must be manifestly unlawful. It is not enough that the strike turns out to be illegal upon closer examination. This is a high hurdle to reach.
To person
Lena Rudkowski is professor of civil law and labor law at the Justus Liebig University in Giessen. In addition to labor law compliance, her focus also includes industrial dispute law. She has been dean of the law department at JLU since 2022.
Strikes are very rarely overturned by the courts
tagesschau.de: What does obviously illegal mean?
Rudkowski: To put it colloquially: It is obvious to you that the strike cannot take place like this. For example, when life and limb are at risk due to a strike, for example in the health sector. This is harder to argue with in the case of the rail strike.
tagesschau.de: How successful are attempts to ban strikes in general?
Rudkowski: It’s been years since it worked. The jurisprudence in this country is quite strike-friendly. The labor courts argue: Employees have a right to strike, then they must be able to exercise it. That’s the concept of the strike – to cause economic damage in order to put pressure on the other side.
Danger to body and health?
tagesschau.de: Have there ever been judgments where this actually happened?
Rudkowski: We recently had a ruling in Hamburg that restricted the strike. The control center for the Elbe tunnel should be on strike and the tunnel should be closed on a day when public transport and the railways were also on strike. The state labor court said that traffic chaos would occur throughout Hamburg and that the emergency routes would be lengthened as a result of these widespread effects, so the tunnel had to be kept open by an emergency crew. Then we are back to the protection of life and limb, which outweighs the right to strike. But of course that can hardly be argued with the railways.
tagesschau.de: What other reasons are there other than a court to restrict a strike?
Rudkowski: The right to strike is enshrined in the Basic Law and is a valuable asset. You will only get this limited if you base it on higher-ranking third-party rights that are restricted by the strike. In addition to a threat to life and health, this could include rail customers’ right to freedom of movement or entrepreneurial freedom, for example if a depot relies on chemical deliveries via rail.
A question of proportionality
tagesschau.de: We currently have a kind of wave strike ahead of us with very short lead times. How are they legally assessed?
Rudkowski: A wave strike is actually characterized by the fact that it is spontaneous and is not announced. This is not the case with the current GDL rail strike because there is a 22-hour lead time. Without an announcement, things could become problematic for the GDL. This would be a possible reason for courts to rule that this strike would then be disproportionate. This is about the affected rights of third parties.
tagesschau.de: And how do you look at the 22 hours?
Rudkowski: The sooner the GDL announces that something is coming, the sooner customers and the railway can plan alternative options. And a day more advance notice may make a difference. For example, the travelers might not suddenly find themselves stranded in a strange city. How the question of lead time is answered by the court is very exciting for me as a labor lawyer.
tagesschau.de: Why?
Rudkowski: There have been few wave strikes in Germany so far. Most recently in the 1990s with printing company employees. The printers then spontaneously stayed at home. At that time, the court was primarily concerned with questions of remuneration. Who pays if the print shop employees who actually wanted to go on strike spontaneously come and the employer has already made provisions and hired replacement staff for the day?
tagesschau.de: And when it came to printers, the question didn’t arise after the announcement?
Rudkowski: Exactly, while striking printing workers ensure that there may not be a daily newspaper the next morning, the impact in rail traffic on the people affected and their freedoms is much greater. Public transport is also about the individual’s right to free movement.
“The right to strike is already being restricted”
tagesschau.de: There are currently some proposals to regulate the right to strike, as in England or Spain, so that there is legally guaranteed emergency care in areas of general interest. What do you think of it?
Rudkowski: I think that’s difficult. Although we do not have a strike law, we do have Article 9 Paragraph 3 of the Basic Law, freedom of association. However, the right to strike is already restricted by the rights of third parties, and the labor dispute parties usually see it that way. In hospitals, for example, there is emergency staffing during strikes; this “emergency service obligation” is derived from Article 2 Paragraph 2 of the Basic Law. Under no circumstances should the strike lead to danger to life and limb. That works too.
In other areas, such as water supply, the labor dispute parties also agree on such arrangements during strikes. Sometimes legal disputes arise because of the scope. But then they will be clarified. The situation with the railways is currently different anyway.
tagesschau.de: Why?
Rudkowski: When it comes to the railways, you shouldn’t forget that there are still railway workers at the EVG and also civil servants who are not allowed to go on strike. In this sense, case law has so far argued that there is no obligation to provide an emergency service. There is always a replacement timetable here because of the unorganized or differently organized employees and civil servants.
tagesschau.de: Nevertheless, political voices are being heard calling for restrictions on the right to strike. What do you think?
Rudkowski: There were always such debates, but they never became reality. And I also doubt that we need such a reform. Because at the moment it is about a single group, more precisely a union, the GDL, in a conflict with the railway. You probably have to look for a solution for the railways, for example asking yourself whether there will be a need for civil servants in certain areas of the railways who are not allowed to go on strike. But this is a political, not a legal, question.
The interview was conducted by Alina Leimbach, ARD finance editor.