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.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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