Comment: Ruling could kill unions

The most fundamental change has taken place in the landscape of European labour relations in over a century and yet almost everyone is silent.

We contacted the EU’s Fundamental Rights Agency in Vienna who were indifferent, whilst the European Trades Union Congress in Brussels and UNI in Geneva are both seemingly unaware that their fundamental rights have been undermined – and no word appears anywhere in the HR press. So what is this revolution no one is speaking about?

The top labour court in Germany, the largest economy in Europe, has just confirmed that it is lawful for a company to pay a strike-break premium to stop employees joining an industrial action. The German Federal Labour Court (BAG) held that offering such a premium was a legitimate means to prevent workers from participating in a union strike and it was not disproportionate, even if it exceeded their daily income. (Judgment of 14 August 2018 – 1 AZR 287/17).

The only problem for BAG was that the court had not read the German constitution which, under Article 9, states that in relation to union rights “Agreements that restrict or seek to impair the right [to safeguard and improve working and economic conditions] shall be null and void, measures directed to this end shall be unlawful”.

Over and above this restriction is Article 28 of the EU Charter of Fundamental Rights (2000) that has been incorporated into the EU Treaty. This states that “Workers and employers, or their respective organisations, have the right to negotiate and conclude collective agreements at the appropriate levels and, in cases of conflicts of interest, to take collective action to defend their interests, including strike action.”

Whilst the right to effectively “bribe” individual employees not to participate in a strike would be a highly attractive option for many employers, it does run against the most fundamental principles of European Labour Relations. Ironically such an act would not even be lawful in the USA.

It will take an individual or trades union to apply for this case to be referred to the German Constitutional Court or European Court of Justice – where its findings will no doubt be squashed. In the meantime, we would not recommend that employers, even in Germany, set up funds to beat strike activity. Ironically, the practice of paying a premium would quickly work against employers’ interests because it would give employees a useful way to increase their pay levels by constantly seeking a pretext to call a strike so that they could be bought off from taking part in it.

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