The end of the principle of uniform collective bargaining agreements ("Tarifeinheit"), decision of the Federal Labour Court, 23 June 2010

For over 50 years the principle of uniform collective bargaining agreements has been an established part of German case law. It states that only one collective bargaining agreement ("Tarifvertrag") relating to each aspect of the employment contract (for example pay or holiday) could exist within one business location ("Betrieb").

Under German law, an employer or employer's association can conclude collective bargaining agreements with trade unions to regulate all aspects of employment relationships. Case law from the Federal Labour Court developed a system to deal with the applicability of collective bargaining agreements where multiple agreements covering the same topics/matters (i.e. pay, hours of work etc) existed within one business location. This system led to the development of the principle of uniform collective bargaining agreements. According to this principle, a more specific agreement overrules a more general agreement. Furthermore, a collective agreement concluded by the trade union which represents more employees overrules an agreement concluded by the trade union representing fewer employees.

As a consequence of this principle, some collective bargaining agreements never entered into force as they were simply overruled by other agreements at the outset. This resulted in trade union members being subject to collective bargaining agreements concluded by trade unions of which they were not members.

This principle has now been superseded, meaning that several different collective bargaining agreements covering the same topics may be applicable within one business location. This decision has a huge impact on several other aspects of (mainly collective) German employment law.

Are job applicants entitled to reasons from the employer for not getting the job?, decision of the Federal Labour Court, 20 May 2010

The German Federal Labour Court has referred questions on the application of the Equal Treatment Directives and their implementation into German law to the ECJ for a preliminary ruling.

In this case the applicant, a 45 year old female from Russia, applied for a job as a software developer but was unsuccessful. The rejection letter advised the applicant that she had been unsuccessful but did not explain why.

The applicant claimed in court for damages on the basis that she met all requirements for the position but was not considered due to her sex, age and origin. Under the German Equal Treatment Act, any claim for damages requires the employee to establish at the outset facts which constitute a prima facie case of discrimination (thereafter the employer must establish a non discriminatory reason for the act/omission). The court took the view that the employee did not establish facts from which an inference of discrimination could be made. However, the employee argued that she was unable to do so as the employer did not provide any reasons for her application's failure. Under German law, an employer is under no obligation to provide such information.

The German Federal Labour Court has therefore referred this matter to the ECJ for a preliminary ruling on whether the Equal Treatment Directives entitle an applicant to reasons from the employer for why their application failed and, if so, under which circumstances such entitlement exists.

Access to the internet may be "necessary" for works councils, Decision of the Federal Labour Court dated 20 January 2010

Under German law the employer bears certain of the works council's costs, including the cost of any equipment the works council requires to fulfil its duties.

The Federal Labour Court has recently decided that a works council is entitled to be provided with access to the internet if: the works council has already been provided with a computer; the employer's premises are connected to the internet; and allowing the works council access to the internet does not create additional costs for the employer.

Reported case law

Stuttgart Labour Court, Decision of 15 April 2010

Discrimination in employment (including conditions for access to employment) on the grounds of race or ethnic origin, gender, religion or secular belief, disability, age or sexual identity is prohibited in Germany under the General Equal Treatment Act (the "AAG") which came into force on 14 August 2006. In this case, the labour court in Stuttgart had to decide whether people from the former East Germany constituted an ethnic group capable of protection under the AAG.

The claimant was an unsuccessful job applicant whose CV was returned to her with the word "Ossi" (a derogatory nickname often applied to people from the former East Germany) and a minus sign written on it. This was despite the fact that she had left the region before the German reunification and had lived in Stuttgart for 21 years. She claimed ethnic discrimination before the labour court on the grounds that her application was unsuccessful due to her status as a person originally from the former East Germany.

In reaching its decision the labour court noted that an ethnic group could be defined by a common tradition, language, religion and even a common cuisine. In light of this, it decided that the former East Germany had not existed long enough to develop an identity sufficiently different from that of West Germany and the claim was dismissed. With this decision the labour court has established some criteria for defining ethnic groups. However, it should be noted that this was a first instance decision and may be appealed.

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