2008 Annual Survey of violations of trade union rights - Germany
|Publisher||International Trade Union Confederation|
|Publication Date||20 November 2008|
|Cite as||International Trade Union Confederation, 2008 Annual Survey of violations of trade union rights - Germany, 20 November 2008, available at: http://www.refworld.org/docid/4c52ca8f23.html [accessed 3 August 2015]|
ILO Core Conventions Ratified: 29 – 87 – 98 – 100 – 105 – 111 – 138 – 182
Two decisions of the Federal Labour Court strengthen trade union rights. Civil servants, irrespective of their function, are still deprived of the right to strike. Different forms of employers' anti-union behaviour were reported.
Trade union rights in law
The Basic Law guarantees freedom of association. Minimum standards are provided for in separate acts rather than in a single labour code.
The Basic Law recognises the right to bargain collectively, and agreements are governed by the Act on Collective Agreements. Collective agreements are binding for members of the trade union and employers' association concerned. There is a rule limiting collective agreements to work-related issues, not to business decisions, which creates a lot of "grey area" of what can or cannot be a subject of collective bargaining.
Consultation and information rights: Workers are able to participate in management decision-making through works' councils, which are responsible for supervising the implementation of the union's collective agreement in a workplace. Workers' consultation and information rights are in line with European Union legislation. Members of works' councils do not have to be union representatives, although more than half are union members according to figures from 2006.
The co-determination arrangements in large companies allow the workers' representatives on the supervisory boards of groups to have a say on general company policy, though not ultimately to prevent mass dismissals or company transfers, owing to the majority of seats being held by management.
No right to strike for civil servants: Civil servants in public services, including teachers, are denied the right to strike. Since 1959, the ILO has been asking the government to grant the right to strike to civil servants that do not exercise authority in the name of the state. Similarly, despite ILO criticism, employees with civil servant status are still denied collective bargaining rights. Employees in public services who are covered by collective agreements do, however, enjoy full freedom of association. Most civil servants' and professional organisations, unlike the member unions of the DGB, are still opposed to the right to strike for civil servants, so as to avoid risking the loss of their acquired "privileges" (such as the state's obligation to support them financially and their protection against dismissal, etc.).
The trade unions were closely involved in a comprehensive modernisation of the legislation governing the civil service under the Schröder (Social Democrat) administration, and it was hoped that this would take ILO recommendations into account. No progress has been made since the coalition government came to power in November 2005.
Protest and solidarity strikes: There is no separate law on strikes, and most strike-related rules are developed by the jurisprudence of the Federal Labour Court (BAG). Until this year, there was a general understanding that only strikes relating to concluding a collective agreement were legal. However, the BAG decisions challenged this view.
On 24 April the BAG ruled that trade unions are allowed to call protest strikes against issues such as closure of plants, which until then were considered a matter of employers' business autonomy and therefore outside the scope of collective bargaining.
On 19 June BAG ruled that sympathy strikes are justified provided that the striking union is affected by the dispute it renders support to.
Trade union rights in practice and Violations in 2007
Collective bargaining: Germany has a strong tradition of collective bargaining which in 2004 allowed for the negotiation of job saving deals, particularly with the big car manufacturers. This situation continued in 2005, although it at times meant major concessions by the unions, including pay cuts, limited job cuts and flexible working time, to preserve as many jobs as they could.
Discrimination: Trade union discrimination does take place. Prominent trade union members are targeted; dismissals, demotions, transfers and discrimination in recruitment are eminent, especially when trade union activists are also members of the works' councils. Legal redress is available if the workers are prepared to go to courts.
Anti-union employers: Regardless of a rich tradition of trade unionism, collective bargaining and workplace representation, there are plenty of companies that are quite hostile to trade unions. In these cases, external trade union representatives are not granted access to the workplace and employers engage in anti-union propaganda.
Employers can avoid workers' representatives by dividing companies into smaller units. There is no minimum membership requirement for a trade union, but at least five workers are needed to form a works council, so, by creating very small organisational units, employers can diminish union presence indirectly. Attacking works' councils to undermine trade unions is a well-known tactic: management can be quite manipulative in using minor controversies to make a mountain out of a molehill, for example, publicising overhead costs of a works' council. Naturally, all these actions are against the law and can be challenged in court, but they need to be proven.
Anti-union harassment intensifies during strikes and trade union protests; there were cases where the police were called in to "discipline" trade unionists, thus siding with the employer.
Strike prohibited on economic grounds: On 8 August the Nuremberg labour court issued an injunction against the strike envisaged by the GDL trade union of engine drivers (not affiliated to DGB) in Deutsche Bahn (German railways). The court's argument for blocking a strike was the likelihood of significant economic damage to the company. Prominent labour law experts declared the Court's argumentation completely inadequate and legally untenable. While there were a number of concerns over the collective dispute as such, and the debate was certainly politicised, such cases are certainly being used by employers in order to limit workers' right to strike.