Since the decisions of the BAG on so-called intercompany alliances for jobs (betriebliche Bündnisse für Arbeit), it is acknowledged that unions can assert their own claim to the desistance or non-applicability of shop agreements that contradict collective agreements ("unions' claim for removal"). In its judgement dated 17 May 2011 (docket no.: 1 AZR 473/09), the BAG addressed this problem again. It hereby limited the unions' claim for removal.
In the matter underlying the decision, the legal predecessor of the defendant and the works council established there had concluded a shop agreement on the increase of the weekly working hours from 35 to 40 hours with the simultaneous granting of a performance and profit-related bonus. The industrial union of metal workers IG Metall considered this contrary to the collective agreement and demanded that the defendant, which was bound by the collective agreement, individually offered the employees remuneration for the working hours rendered by them over and above the collectively agreed 35 weekly working hours.
The previous instances had dismissed the complaint, which was also unsuccessful in the appeal on points of law before the BAG. In its reasoning the BAG stated that, although the union had a claim to the desistance of actions which encroached upon its fundamental right of union activity protected by the German Constitution (Grundgesetz, "GG") pursuant to Art. 9 para. 3 GG, it considered the encroachment in this case to solely be the conclusion of the shop agreement that contradicted with the collective agreement. Through the cancellation of such shop agreement, according to the BAG, the encroachment was also discontinued and the collective coalition freedom no longer impaired. Compensation of the wage deficits incurred by the employees, however, could not be demanded by the IG Metall.
With this decision the BAG tightens the scope of the unions' claim for removal. It is to be welcomed that the BAG makes a clear distinction between the impairment of the collective coalition freedom and the property claims of the employees in question: in their own right unions can only assert impairment under the law governing collectively agreed provisions – that is to say the shop agreement that contradicts the collective agreement. The compensation of wage deficits, in contrast, must be sued for by the employees in question themselves.
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