Federal Labour Court, 20.11.2012, Ref.: 1 AZR 179/11
According to the prevailing view, the basis for the right to strike in Germany is the freedom of association enshrined in Article 9 (3) of the Basic Law.
Article 9(3) of the Basic Law is a fundamental right without any legal reservation. As with all other unconditionally granted fundamental rights, the limits for this fundamental right can therefore only be determined from the constitution itself.
In other words, Article 9(3) of the Basic Law only permits regulation that is also constitutionally justified on the basis of the unrestricted guarantee.
According to the Church in particular, Art. 140 GG in conjunction with 137 para. 3 WRV constitutes such a constitutionally justified regulation of the fundamental right of freedom of association.
Art. 140 GG in conjunction with 137 para. 3 WRV is the basis of the church's right to self-regulation, which always applies when the churches act in the external area, i.e. when it is not a matter specific to religion.
In the above-mentioned decision by the Federal Labour Court, the court has now ruled on whether the Vereinte Dienstleistungsgewerkschaft ver.di may call for industrial action in various diaconal institutions in North Rhine-Westphalia and Lower Saxony.
Facts of the Case Plaintiffs 1 to 4 are diaconal institutions organised under private law in North Rhine-Westphalia and Lower Saxony, plaintiffs 5, 7 and 8 are representatives of these and other diaconal institutions and plaintiffs 6 and 9 are the Evangelical Church of Westphalia and the Evangelical Lutheran Church of Hanover. The defendant is the Vereinte Dienstleistungsgewerkschaft ver.di.
The plaintiffs are seeking to have the defendant trade union prohibited from calling on its members to take industrial action and from organising and carrying out such action.
After the defendant had called on plaintiffs 1 to 4 to enter into collective bargaining negotiations and threatened industrial action in the event of refusal, work stoppages took place at the facilities of plaintiffs 1 to 3.
The plaintiffs essentially argue that the implementation of labour disputes in the area of diaconia is fundamentally excluded due to the constitutionally guaranteed right of self-determination of the churches.
The "third way" is envisaged for the regulation of working conditions. Instead of confrontational disputes over the conclusion of collective agreements, it provides for mutually agreed regulations through labour law commissions with equal representation.
If an amicable settlement cannot be reached, an independent arbitrator's decision is envisaged.
In this respect, the plaintiffs believe that the requirements for the injunction are met. In this respect, the plaintiffs 5 to 9 are also entitled to injunctive relief in their own right.
The defendant trade union argues that it is entitled to take industrial action on the basis of Article 9 (3) of the Basic Law.
For example, there is no legal basis for excluding the right to collective bargaining and industrial action in the area of church institutions.
In the event of a conflict, the special requirements of church services, for example in the area of nursing care, could be taken into account by concluding appropriate emergency service agreements, as is customary for state institutions providing services of general interest.
In addition, the defendant invokes procedural objections. In any case, the requirements for a claim for injunctive relief are not met.
The labour court initially seised granted the main claim of the plaintiffs 1 to 3, seeking an injunction against calling a strike and other industrial action, and dismissed the remainder of the action.
The Hamm Regional Labour Court (judgement of 13 January 2011, case reference: 8 Sa 788/10) dismissed the action in its entirety, partially amending the judgement of the court of first instance.
With their appeal to the Federal Labour Court, the plaintiffs pursued their claims further.
Federal Labour Court: The First Senate of the Federal Labour Court has now rejected the plaintiffs' appeals.
The impairment of the church's right to self-determination through industrial action is not unlawful without exception. The right of the Evangelical Church of Westphalia and its diaconal institutions under Art. 140 GG in conjunction with Art. 137 para. 3 WRV to organise and administer their own affairs is functionally related to the realisation of religious freedom under Art. 4 para. 1 and 2 GG.
Its scope of protection also includes the decision not to regulate the working conditions of employees working in the diaconate by means of collective agreements with trade unions, but to hand them over to an independent labour law regulation procedure based on the model of the service community in accordance with their religious confession. This includes the authority to delegate the regulation of working conditions to a labour law commission with equal representation and an arbitration commission with an impartial chairman.
This religious confession - which cannot be reviewed by state courts - collides with a trade union's freedom of association, which is protected by Article 9(3) of the Basic Law, insofar as the religious organisation makes use of private autonomy to establish employment relationships.
An essential purpose of the protected freedom of association is the conclusion of collective agreements to regulate the minimum working conditions of its members. Insofar as the pursuit of this purpose of the coalition depends on the use of certain means, these are covered by the protection of the fundamental right. In the opinion of the BAG, this also includes industrial action insofar as it is functionally directed towards the conclusion of collective agreements. However, the guarantees of Art. 9 Para. 3 GG are not limited to collective bargaining autonomy, but also cover consensual solutions.
When deciding on a claim for injunctive relief under civil law, state courts would have to strike a careful balance between these conflicting fundamental rights in accordance with the principle of practical concordance. In a balancing of interests to be carried out according to this principle, the extent and weight of the impairment on the part of the religious organisation is determined by its self-image.
Accordingly, industrial action to enforce a collective agreement would lead to the dissolution of the service community. It seriously impairs diaconal work and damages the credibility of the church. On the other hand, the exclusion of collective bargaining and industrial action to enforce it substantially restricts a trade union's right to organise. In addition, its ability to recruit members, which is essential for the continued existence of a trade union, would be considerably reduced.
The weighting of these constitutionally protected interests in order to establish practical concordance would only allow the rights of a trade union to be set aside if it could still operate as a coalition within the third way, if the labour law set by the third way was binding for the employers and was also the basis for the employment contracts as minimum working conditions.
On this basis, the actions of the plaintiffs belonging to the Evangelical Church of Westphalia were unfounded, if only because the employer side there has the option of unilaterally choosing between different Third Way labour law regulations. The other appeals had to be dismissed on general procedural or tort law grounds.
Source: Federal Labor Court
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