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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