The law on industrial disputes is constantly in motion. Following the highly-publicised decisions of the BAG on the permissibility of collective social plans and support strikes, on 19 July 2012 (docket no. 1 AZR 775/10) the First Senate was called to decide upon damage claims of an enterprise which, despite having just changed its form of membership to membership without tariff commitment, was the target of strike measures.
The "last-minute" change to an association membership without tariff commitment (non-tariff membership) has for some time already been seen by enterprises as a tried and tested means of evading foreseeable tariff wage increases whilst still being able to enjoy the benefits of an employers' association. This was also the intention of the suing enterprise: When new a new round of collective bargaining on the collective wages and salaries agreement was in sight, it changed its membership of its previous employers' association to a non-tariff membership and acquired a new (full) membership of the employers' association for enterprises in the paper, card and synthetics processing industry [Arbeitgeberverband Papier, Pappe und Kunststoff verarbeitender Unternehmen, VPU]. By letter of the VPU and at a meeting between the management and ver.di representatives, notification was given of the change to non-tariff membership. Shortly thereafter, ver.di nevertheless invoked a warning strike; the enterprise subsequently sued the union for damages.
Other than in the previous instances, the BAG established that the warning strike was unlawful and that ver.di was obliged to pay damages. It therewith fundamentally confirmed the opinion that a change to non-tariff membership during ongoing collective bargaining talks certainly does make any subsequent industrial action on the conclusion of an association-level collective agreement impermissible, if the change in status was sufficiently transparent and thus valid pursuant to collective bargaining law for the union in question.
Critical commentaries – primarily from the unions – perceive the judgement to be a legitimisation of "last-minute resignations", permitting employers to avoid collective wage increases. However, this is only conditionally the case because, although an employer can use a last-minute resignation to avoid industrial action aimed at the conclusion of an association-level collective agreement, such a step is only conditionally suited to generally avoid collective wage increases, since strike measures are still a fundamental possibility with a view to the conclusion of a company-level collective agreement, irrespective of any last-minute resignation.
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