In 2010, Germany’s Federal Labor Court
(Bundesarbeitsgericht) abolished the principle of
collective bargaining unity, commonly referred to as
“Tarifeinheit” (“One business, one collective
agreement”). As a consequence, since then it has been
possible that two different collective bargaining agreements
applied for the same group of employees within the same operation.
This ruling is supposed to be the major reasons why there have been
more strikes in the last couple of months in Germany than ever
The Act on Collective Bargaining Unity
(Tarifeinheitsgesetz) which entered into force in the
summer of 2015 is meant to avoid such a conflict of collective
agreements in the future. Under the Act, in the case of a clash of
collective agreements, only the collective agreement of the trade
union will apply in the operation which has the largest number of
members at the time the conflicting collective agreement is
concluded. The majority rule is meant to ensure that the collective
agreement with the highest level of acceptance among the employees
Minority trade unions that do not participate in the collective
bargaining of the major trade union enjoy a right to be heard by
the employer. They can express their views and claims in the course
of this hearing. The employer is obliged to make public the
commencement of the collective bargaining process in good time. If
the minority trade unions' right to be heard is breached, they
may apply for a court decision. In addition, minority trade unions
have a right to sign corresponding collective bargaining
agreements. They can request that the employer or the competent
employer’s federation enters into an identical collective
agreement with them.
In case of a dispute regarding the applicable collective
agreement, the labor court decides which collective agreement
applies. The decision of the labor court is binding
vis-à-vis third parties. Employers must publish final court
decisions and collective agreements applicable in the operation
(e.g. on a bulletin board or the Intranet).
Though the Act expressly states that it does not intend to
change the law on industrial action in any way, strikes by minority
trade unions could be held to be illegal because their collective
agreements could not prevail because of the new majority rule. This
is one of the reasons why some legal scholars consider the Act not
to be in line with the trade union freedom guaranteed by the German
Constitution. Some of the small trade unions, considering the Act
to be an existential threat, filed constitutional complaints
immediately after the Act being published in the Federal Law
Gazette and applied for interim injunctions.
Just recently, on October 6, 2015, the Federal Constitutional
Court rejected the motions for interim injunction. The court
considered it unforeseeable that the small trade union would suffer
serious disadvantages in case of a continued application of the Act
until the court has ruled on the action in the main proceedings.
Anyway, this is in no way a confirmation of the constitutionality
of the Act. Employers will have to come to terms with the Act on
Collective Bargaining Unity until the Federal Constitutional Court
has ruled on the action in the main proceedings which will probably
be by end of 2016.
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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