2009 Annual Survey of violations of trade union rights - Germany

Population: 82,500,000
Capital: Berlin
ILO Core Conventions Ratified: 29 – 87 – 98 – 100 – 105 – 111 – 138 – 182

A European Court of Justice (ECJ) judgment again effectively ignored international law. 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 directly 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. Some 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 (until 2005), and it was hoped that this would take ILO recommendations into account. No progress has been made since the "Grand Coalition" government came to power in November 2005, however.

Protest and solidarity strikes: Strikes and lock-outs are not regulated by law, but follow the jurisprudence of the Federal Labour Court (BAG). To date, there has been a general understanding that only strikes relating to the conclusion of a collective agreement are legal. The BAG decisions in 2007 challenged this view, however.

On 24 April 2007, the BAG ruled that trade unions are also allowed to call protest strikes concerning issues such as closure of plants.

On 19 June 2007, the BAG ruled that sympathy strikes by unions with no direct bargaining claims of their own are justified as long as the striking union is affected by the dispute it is supporting.

Trade union rights in practice and violations in 2008

ECJ rulings undermine workers' rights: In 2008, the "Rüffert" Judgment annulled, in practice, the "Tariftreueregelungen" in the Federal states. These "Tariftreueregelungen" are provisions under public procurement law, which stipulate that public tenders can only be awarded to companies that pay standard wages. The ECJ ruled that public tenders could only prescribe terms and conditions established through statutory legal minimum wages or generally applicable collective agreements. In Germany this has meant that posted workers have a lower level of protection. The Rüffert Judgment is one of a series of legal rulings (with Viking, Laval, and the Commission versus Luxembourg) that have interpreted the "Posting Directive" as establishing maximum conditions, with no higher level of protection being allowed than that provided in the Directive, whilst companies' economic freedom has been given primacy over workers' rights.

Collective bargaining: Germany has a long tradition of collective bargaining. However, in many sectors exemption clauses have been agreed between the social partners that allow companies to undercut collective agreements in certain circumstances in order to safeguard employment. Wherever concessions were made on wages, employment guarantees were provided in return. Collective agreements signed by yellow unions, with few members and low representativeness, are increasingly been recognised in courts. A particular problem is presented by collective agreements signed by Christian trade unions, which have often settled for indecently low wages.

Discrimination against trade union members: There is no systematic discrimination by the state in Germany; however, there have been repeated cases of anti-union discrimination by employers. For instance, prominent trade union members are targeted and dismissals, demotions, transfers and discrimination in recruitment occur, especially when trade union activists are also members of the works' councils. Court cases to oppose such forms of discrimination, which sometimes seriously threaten trade unionists' financial situation, can often be long and painful processes.

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, for instance, 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. Media attacks on works' councils to undermine trade unions are a well-known tactic: management can be quite manipulative of public opinion, for example, by exaggerating the overheads of a works' council.

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 and undermining the principle of state neutrality.