In the event that employees from a business that is not strikebound are relocated to a strikebound business of the same employer, the works council of the supplying business does not have the right to refuse its consent pursuant to Sec. 99 BetrVG.
On 13 December 2011 the Federal Labour Court had to decide whether the consent of the works council of the supplying – not strikebound – business was required in a case where employees were relocated to a strikebound business at the employer's instigation in order to combat such strike. The Federal Labour Court ruled in favour of the employer, which had not obtained the consents (docket no.: 1 ABR 2/10).
To the extent evident from the currently available press release, a decisive consideration for the Federal Labour Court was dispute parity. The requirement that the works council must be heard and its consent obtained pursuant to Sec. 99 BetrVG is linked to difficulties which impair the employer's strike defence measures and thus its dispute parity. This is irreconcilable with Art. 9 para. 3 German Constitution [Grundgesetz, GG]. Not considered a decisive factor by the Federal Labour Court was whether the strike was aimed at the conclusion of an industry-wide collective agreement ["Verbandstarifvertrag"] or a company collective agreement specific to the business ["betriebsbezogener Haustarifvertrag"]. However, also during industrial action the employer must notify the works council in good time and comprehensively pursuant to Sec. 80 para. 2 p. 1 BetrVG on the employees it calls in as a strike defence measure.
The Federal Labour Court has therewith once again confirmed that the employer must retain a certain degree of freedom in how it deploys its staff during industrial action to ensure it does not face union strike measures – perhaps also at other businesses of its enterprise – without any own means of remedy. If sufficient employees who are willing to work are available, then this makes it possible to flexibly mitigate the impairments to operations resulting from the strike measures.
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