To what methods of industrial action do employers and employees actually have access under German law, and what developments are currently relevant in Germany in this context? It should be noted that there have been an increasing number of strikes in Germany in recent years. Added to this is the fact that the methods of industrial action used by parties are becoming increasingly more flexible than they were in the past. The following is a brief overview of the possible methods of industrial action for both employees and employers.

The employee’s side

As is the case with employees in the Netherlands, many employees in Germany are organised in unions. In the case of industrial disputes, the trade union regularly determines the methods of industrial action to be chosen. A classic method of industrial action is the strike. Where in the past it was actually only the affected employees that were involved in a dispute, the current tendency has been for the increasing involvement of the public in disputes in order to increase the pressure on the employer’s side.

In 2007, the Federal Labour Court ruled that so-called support or sympathy strikes are also considered to be legally possible. The peculiarity of this type of labour dispute is that the employees concerned act not, as is usually the case, on behalf of the fulfilment of their own collective bargaining demands, but instead join the labour disputes of others as supporting parties. The relevant criterion as to whether the support in individual cases is authorised or not has been based on the question of whether the principle of proportionality, which requires a suitable weighing up of conflicting legally protected rights, is adhered to. A support strike is therefore prohibited if it is manifestly unsuitable for the achievement of the objective and is also not necessary or appropriate. The basic prerequisite here is firstly the legality of the main industrial action. In addition, the support strike must be sufficiently close to this main industrial action, which may result, for example, from an economic link with the opponent. All far-reaching effects that are hardly related to the main industrial action regularly lead to disproportionality of the support strike.

The so-called flash mob is another method of industrial action on the part of trade unions. A flash mob is an action in which a trade union calls a strike in order to interfere with specific business processes in individual companies: for example, customers are asked to leave full shopping trolleys containing low-value goods behind in stores or purchase large numbers of low-value items in order to significantly slow down the payment process. The Federal Labour Court has classified this form of action as a legal method of industrial action. Here, again, the decisive criterion is whether the choice and the reason for the action are adapted to current needs and developments, that is to say, are proportionate. As a restrictive condition for the permissibility of a flash mob, the Federal Labour Court stated that such action must be recognisable as dispute methods on the part of a trade union. The employer can defend himself sufficiently against a flash mob by virtue of the right of domestic ownership and the possibility of temporary business closure.

Lastly, there is the business blockade. This is regularly unlawful, because it constitutes a violation of the established and practiced business enterprise of the employer.

Which methods of industrial action are legitimate in the individual case is also assessed by the question of whether the goals aimed at in a strike are at all worthy of protection. Here, the legal point of departure in Germany is the prevailing view that labour actions are understood as a necessary means to ensure functioning tariff autonomy. The aim of industrial action may and can thus only be regulations that can be effectively managed collectively. Against this background, a collective social plan is assessed as admissible by the Federal Labour Court if the purpose of the collective social plan is to mitigate the disadvantages resulting from a planned change in the company’s operations. It cannot be the goal of methods of industrial action to attack an entrepreneurial decision. The entrepreneurial decision is to be given priority in principle by virtue of the constitutional protection provided by Article 12, 14 of the German constitution, so that in this respect a lawful labour dispute is withdrawn by the court. If, therefore, an industrial action is aimed at the possible closure or relocation of a business location, this entrepreneurial decision does not qualify as the goal of a strike. A legitimate goal, on the other hand, would be to ensure the distribution of working hours by means of coordinated minimum staffing, thereby indirectly protecting individual employees from additional burdens. It is also important that industrial action targets be formulated in a sufficiently defined manner. Here, it is sufficient that further concretisation can still be achieved in the course of future negotiations.

The employer’s side

A classic remedy of the employer is the lock-out, that is, preventing employees from doing their work. However, as this method of industrial action actually harms the employer more than it helps him, in practice other possibilities have emerged from this. For example, employers often pay strike-breaking premiums to employees that resist a call to strike from unions or do not support an already commenced industrial action and instead do their work. For the assessment of whether such a strike-breaking premium is effective, it is necessary to determine whether the premium is paid after the end of an industrial action or before or during it. If the premium is paid after the end of an industrial action, this is regularly not permitted. If, however, it is paid before or during the industrial action, it is basically permissible. Often, however, provisions are introduced in a collective bargaining agreement negotiated on the basis of an industrial action that ensure that there is no discrimination on the part of employees that participate in a strike. Such clauses may still lead to a possible claim by participants in an action for the payment of a premium.

A further method of the employer is a suspensory company shutdown. Unlike lock-outs, this is subject to considerably less strict requirements. In such an action, the employer can only close certain parts of the company or the entire operation temporarily. This method is clearly limited to the duration of the strike and must be clearly communicated.

Co-determination of the Works Council

In general, according to German law the works council has a right to co-determination in many of the employer’s personnel decisions. However, in the period of an ongoing industrial action, the co-determination rights of the works council are limited. This results from the duty of neutrality of the works council, which results from law. A significant consequence is that the basic continued participation rights are restricted where this is necessary in order to prevent conflicts of interest. For example, a transfer of employees willing to work that an employer undertakes within his company in order to maintain business operations is not subject, in terms of the definition of industrial action, to the agreement of the works council. If such a transfer, on the other hand, goes beyond the limits of individual companies within a group, there is no conflict of interest on the part of the works council, since the employer there is not himself a partner in the dispute. The situation regarding the organisation of overtime is similar. Regarding the arrangement of overtime hours during a strike such that its effects are directly mitigated, the approval of the works council in the organisation of overtime hours is not necessary. If, on the other hand, the employer only intends to retroactively compensate for interruptions caused by the strike, the works council continues to have a say in the decision.

By Susanne Hermsen-Pfeiffer