The Federal Labour Court ruled by judgement dated 23 March 2011
(docket no. 4 AZR 366/09) that qualified differentiation clauses in
collective agreements in the form of so-called "adjustment
clauses" (Spannklausel) are invalid. Since August,
the reasons for the judgement to this long-awaited decision of the
Federal Labour Court have become available:
In the said case the parties to the litigation had concluded a
collective agreement on the granting of a recuperation allowance of
260 euro per year, which was to be granted exclusively to union
members (so-called simple differentiation clause). According to the
collective agreement, should the employer grant amounts or benefits
to non-union members corresponding to or exceeding this claim, the
employer's payment to the union members should additionally
increase accordingly (so-called qualified differentiation clause in
the form of an adjustment clause).
In the decision the Federal Labour Court confirmed its previous
case law to the effect that the agreement of a simple
differentiation clause which envisages special benefits only for
union members is permissible. In contrast, however, it deemed a
qualified differentiation clause in the form of a so-called
adjustment clause to be invalid. Namely, such an agreement exceeds
the collective bargaining power of the parties to the collective
agreement. They are not authorised to restrict the employer's
individual contractual structuring possibilities with mandatory
effect, especially concerning employees who do not belong to an
organisation or who are members of in another organisation. The
adjustment clause, however, – as intended –
makes it legally impossible for the employer to pay non-organised
employees the same pay as that of union members, even if it intends
to put them on an equal footing. Such a qualified differentiation
clause is therefore invalid.
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