Ruling on the collective bargaining unity act: complicated and with potential for dispute

The Constitutional Court’s ruling protects important rights of small unions. However, it is now possible that the conflicts will only get worse.

This is particularly important for small unions: The right to strike remains. The picture shows doctors and medical staff at a strike of the Marburger Bund in 2014 Photo: dpa

The Federal Constitutional Court has largely accepted the Grand Coalition’s collective bargaining unity law – after it interpreted key interests of small unions into the law. Above all, their right to strike remains fully intact.

Collective bargaining unity means that only one collective agreement applies per company. The principle is intended to prevent a different union from constantly going on strike for "its" collective agreement, and companies from being unable to rest easy.

Actually, collective bargaining unity is nothing new. In Germany, this has applied since a ruling by the Federal Labor Court (Bundesarbeitsgericht – BAG) in 1957. However, collective bargaining unity has always been controversial because it interferes with the rights of trade unions protected by the German constitution. In 2010, the BAG therefore declared that only the legislature could introduce collective bargaining unity. The DGB and employers put pressure on the Bundestag and demanded a law to this effect.

Five years later, the grand coalition fulfilled this wish and passed the Collective Bargaining Unity Act. In the event of a dispute, only the collective agreement of the union with the most members in the company is to apply. The collective agreement of the minority union would be "superseded," i.e., dropped from the table. To compensate for this, the smaller union has the right to "re-sign" the majority collective agreement for its members, i.e. to adopt it. According to Labor Minister Andrea Nahles (SPD), the law was an "incentive for cooperation" among unions.

Small trade unions saw their existence threatened

The small unions saw their existence threatened. How could they still recruit members if their negotiated collective agreements did not apply in the end? Wouldn’t labor courts ban any of their strikes because it would be disproportionate to strike for an ineffective collective agreement?

That is why the sectoral unions sued in Karlsruhe: the doctors’ union Marburger Bund, the train drivers’ union GdL, the Independent Flight Attendants’ Organization (UFO) and the pilots’ association Cockpit. Verdi was the only DGB union to file a constitutional complaint. In some hospitals, it has to fear competition from the Marburger Bund.

The Federal Constitutional Court used the complaint for a landmark ruling. The right to form trade unions and conclude collective agreements – freedom of association – is a "right of freedom," the judges said. It was therefore not a legitimate goal for the legislature to keep certain types of unions small. However, the Bundestag is allowed to regulate the framework conditions so that collective bargaining autonomy functions and enables fair, appropriate collective agreements. To this end, the legislature is allowed to prevent "key positions" in companies from being exploited to achieve results for its own group at the expense of the other employees.

However, the "crowding out" of collective bargaining agreements is a serious encroachment on the autonomy of collective bargaining, according to the judges

The "displacement" of collective agreements is, however, a serious encroachment on the autonomy of collective bargaining, according to the judges. It can only be justified if the law is interpreted restrictively. Thus, the labor courts should always examine whether both collective agreements can be applicable alongside each other. In any case, "long-term significant" achievements of a minority collective agreement should not be displaced. If, for example, a job guarantee or a company pension has been agreed, then this must be preserved. This must be ensured either by the labor courts or by the legislature.

The Collective Bargaining Unity Act is unconstitutional in some respects because it does not ensure that the interests of small occupational groups whose collective agreement is displaced are taken into account at all in the end. The Bundestag must make improvements here by the end of 2018. The Collective Bargaining Unity Act will remain in force until then – on condition that majority unions now take "serious and effective" account of the interests of minority unions.

Right to strike remains

However, it is particularly important for the small unions that the Federal Constitutional Court has guaranteed their right to strike. Even if they clearly have fewer members, they are allowed to strike for their own collective agreement, because only a union that has its own (displaced) collective agreement may subsequently adopt the collective agreement of the majority union.

Judges Susanne Baer and Andreas Pauslus sharply criticized the ruling and issued a special opinion. They said it was questionable whether there was any problem at all with small unions. In any case, they were only exercising their basic rights and had also had good reasons for splitting off from the DGB unions. The suppression of their collective agreements was disproportionate, and the law on collective bargaining unity was therefore unconstitutional.

Fittingly, Baer and Paulus were once nominated by the minor parties (Greens and FDP) as constitutional judges, while the six judges around Senate Chairman Ferdinand Kirchhof, once nominated by the major parties (CDU/CSU and SPD), saved the law by making judicial amendments.

After the election, however, the Bundestag could also come to the conclusion that the Collective Bargaining Unity Act is of little use and only causes trouble – and simply abolish it again.

Where do we go from here? It is possible that the conflicts that the law is supposed to avoid are just beginning. Smaller unions may now be tempted to become the majority in the workplace themselves through popular demands, aggressive strikes and the representation of additional occupational groups.

To avoid such conflicts, however, the collective bargaining parties could also exclude the displacement of collective agreements by contract. This is how it is regulated at Deutsche Bahn, at least until 2020. Karlsruhe has now expressly stated that this is permissible.

However, after the election, the Bundestag could also come to the conclusion that the Collective Bargaining Unity Act is of little use and only causes trouble – and simply abolish it again. (Ref.: /15)

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