Tarifeinheit: Immer Ärger mit den Kleinen

Small union – big trouble

“Strike at Lufthansa affects 12,000 passengers”
“GDL strike: The train is not coming“
“Medical protest: Help, my doctor won’t treat me”
The majority of the population has probably come to terms with these headlines. More and more sectoral unions - with a manageable number of members - are paralyzing entire companies and companies and thereby causing immense damage. According to information from Lufthansa, the burden on this company alone due to the pilots' strikes, represented by the Cockpit Association with only around 9,000 members, amounted to almost 200 million euros. The discontent and uncertainty of affected customers is also growing. The support for the strikers among the population is also dwindling because some of the companies affected have already concluded collective agreements with other unions and are still going on strike.

Due to such strike calls from many smaller unions, which until recently led a shadowy existence, in particular the massive strikes at Deutsche Bahn and Lufthansa, the federal government felt compelled to reintroduce the principle of collective bargaining unity, which was valid until 2010, through a legal regulation.

GOliath hits David

The draft law was presented by the responsible minister Nahles in the Bundestag in March 2015, is expected to be passed in May and come into force this summer.
This draft law is intended to supplement or adapt some standards of the Collective Bargaining Agreement Act (TVG) and the Labor Court Act (ArbGG). In particular, a new central core provision, Section 4a, is to be introduced in the TVG. This standard essentially regulates that in the same company only the collective agreements of the union that has the most members in the company are applicable. This will probably apply in the future: When in doubt, for the big ones!
The small unions such as the Marburger Bund or the Cockpit pilots' association will only be able to prevail in very rare cases due to the dominance of the few large unions such as ver.di or IG Metall.

Still a long and rocky road

As soon as the draft law was presented and the federal government announced that there were no concerns about the constitutional conformity of the new legal regulations, the first voices began to be heard denying the proposed law's compatibility with the constitution. The criticism comes primarily from the small unions, who fear that they will once again lose their strong position. It is argued that the proposed law unreasonably restricts freedom of association in accordance with Article 9 Paragraph 3 of the Basic Law and is therefore incompatible with constitutional requirements. The Basic Law guarantees citizens a state-free self-organization to shape working and economic conditions. In short: citizens must be able to decide for themselves which unions should represent their interests. However, if you deprive sectoral unions of the opportunity to conclude effective collective agreements and thereby the central right to strike, you restrict the freedom of association of the members of the respective (sectoral) union. Such an intervention requires appropriate justification, which – according to critics – is not present in the government's draft.
On the other hand, the federal government and, in particular, the employers' associations consider the law to be constitutional. The general manager of the employers' association BDA, for example, believes that the proposed law does not interfere with the constitutionally guaranteed fundamental right, but is merely being developed by it. The responsible minister is also – not unexpectedly – convinced of the compatibility of the government's plan with the Basic Law. In the debate in the Bundestag on March 5, 2015, she said that the right to strike and freedom of association would not be affected by the law.
However, numerous experts believe that the proposed law in its proposed version violates the Basic Law. For example, the former judge at the Federal Constitutional Court, Prof. Dr. Dr. Udo Di Fabio (on behalf of the affected trade union “Marburger Bund”) is of the opinion that a legally imposed collective bargaining unit cannot justify an interference with the fundamental right of freedom of association and is therefore unlawful. Significant concerns have also been expressed internally about the law. The Scientific Service of the Bundestag considers the planned law on collective bargaining unity to be unconstitutional. The group of experts is also of the opinion that the justifications put forward by the federal government - such as the mere increase in labor disputes recently - are not sufficient to restrict the constitutionally guaranteed fundamental right of freedom of association.
Due to these concerns, some stakeholders, for example. The civil servants' association (dbb) and the Marburger Bund doctors' union announced that they wanted to take action against the law at the Federal Constitutional Court. It currently appears that the proposed law still has a long way to go and that numerous courts will deal with it immediately after the law is passed. The desired goal of legal clarity and legal certainty is currently still a long way off.