Comunicacions

In the years after the First World War and before the beginning of the Nazi regime, Germany was a country with a very high strike and lockout rate. Since the end of the Second World War until today you find Germany at the end of the European countries in the ILO´s strike and lockout statistics. For example, only 3,6 working days per 1000 employees were lost in Germany from 1995 to 2006 on average for each year (in Spain: 134,8 working days).

There is, of course, not only one reason for this peaceful situation in my country, but without any doubt one of the reasons is the system of collective bargaining, which was established after the Second World War. I´ll try to describe the main lines of its legal regulation, its functioning in the past and some aspects of the situation of nowadays.

Trade unions in Germany

§ 2 Tarifvertragsgesetz (Collective Treaty Act) states, that collective treaty parties are trade unions, single employers and employer associations. This means, that only trade unions are enabled to be party of a collective treaty in representation of workers and employees.

The (West-) German Tarifvertragsgesetz was enacted in 1949. It belongs to the very few labour acts, which haven´t been changed in its main principles up to today. This fact indicates the stability of the trade union movement in Germany during the last 60 years. The basis for the German trade unions in the present time was created in the first years after the Second World War, when the victors of the war and German politicians, who had been in opposition to Hitler, tried to build a different, democratic country.

Before 1933 the trade unions in Germany were divided - on the one hand - into unions of workers (“blue - collar”), employees (“white - collar”) and public servants, unions of professionals and unions for certain industries. On the other hand, they were divided into four political lines: the social democratic unions, the communist opposition, the Christian unions and the liberal unions. After the end of the Second World War many people, who had been active in the trade union movement and had been persecuted during the Nazi dictatorship, were convinced that it was necessary to create a trade union organizational unit. In other words, their intention was to unite the workers, employees and public servants and make the trade union movement more independent from the political parties.

Up to a certain degree, this idea has been achieved. In the first years after the end of the Second World War, 16 big trade unions with the responsibility (competencia) for industrial or other sectors were founded, for example the Industriegewerkschaft Metall for the metal-working industry and trade (artesanía), the Industriegewerkschaft Chemie for the chemical industry and the Industriegewerkschaft Bergbau for the mining industry. They all organized workers and employees, the trade union for the public service organizes public servants, too. The holding organization of these unions, the Deutsche Gewerkschaftsbund (DGB), was founded in 1949 for the western part of the country. Although all political convictions have been united in the group of DGB-unions, in reality, there exists a closer link to the Social Democratic Party, because most of the leaders are members of this party. But it has been common as well, that the Christian Democratic Party is represented in their boards. Currently, the tie with the Social Democratic Party is not as close as in former times. For example, the president of the trade union Vereinte Dienstleistungsgewerkschaft (ver.di) belongs to the Green Party. On a lower level you find functionaries in the Left Party.

The unions belonging to the DGB have been the dominant powers within the trade union movement in Germany, but they never have been without competition. The   trade Union DAG, which was only for employees (“white - collar”) as well as another trade union only for public servants, were founded in 1949. In the decade between 1950 and 1960 the Christian trade unions were reestablished. They never have succeeded to attract a great number of members. Finally, there still exist small professional unions, some of them even recently founded in order to represent key employees of certain companies. Nevertheless, the trade unions within the DGB keep their top position. The DGB nowadays consists of only 8 member unions, because some of them merged with other ones to form bigger units. The trade union ver.di, which is responsible for the public service area, trade companies and a lot of other sectors, has the largest number of members. The former trade Union DAG, which was only responsible for employees, also merged with ver.di.

Collective treaties in Germany

§ 1 Tarifvertragsgesetz states, that a collective treaty regulates the rights and obligations of the collective treaty parties. It contains legal norms, which can regulate the content, the bargaining and the termination of employment contracts as well as matters of the plant and of the industrial relations scheme. Within these possibilities the collective treaty parties in Germany have regulated nearly all matters of the employment contract. In the metal-working industry, the Industriegewerkschaft Metall usually bargains on a regional level with the regional employer associations. The trade union for the construction industry and trade (artesanía) usually bargains with two central employer associations on the federal level. The trade union ver.di usually bargains for the public service area with the federal government, all state (regiones autónomas) governments and all local communities.

Some companies have their own collective treaties, for example Volkswagen, but in general, you will find so-called Flächentarifverträge (industry-wide-multi-employer  agreements). This means that a collective treaty covers a certain area and all the companies belonging to the employer associations, which negotiate the agreement with the trade union, have to apply the regulations of the agreement, if they are located within the region. It can also be applied by companies, which don´t belong to an employer association, if they agree to apply the collective treaty of the employer association. Additionally, a member of the employer association can bargain for special agreements with the trade union, for example, if it is in a difficult economic situation.

Who is legally bound by a collective treaty?

§ 3 Tarifvertragsgesetz states, that the members of the collective treaty parties and the employer, who is party of a collective treaty, are bound by the collective treaty. Only in the (rare) cases, that a collective treaty regulates matters of the plant or of the industrial relations scheme, it is sufficient, that only the employer is bound by the collective treaty. In all other cases, the employer has to be a member of the bargaining employer association or party of the collective treaty and the employee has to be member of the contracting trade union. There are only few exceptions.

Collective treaties can be declared generally binding by the Federal Minister of Labour (§ 5 Tarifvertragsgesetz). This possibility to declare a collective treaty binding for employers and employees, who aren´t members of the trade union and the employer association, exists only, if 50 % or more of the employees, who can be covered by the collective treaty, work in the companies of the members of the employer association. In addition, at least one of the collective treaty parties has to suggest the declaration and a committee consisting of 3 representatives of the top trade union and 3 representatives of the top employer association has to agree.

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The verdict Rüffert has nothing to do with these declarations. In some regions, among them Lower Saxony, there exist regulations, which prohibit the public administration from ordering services, if the employees don´t receive the payment as if the relevant collective treaty were applicable. In Lower Saxony, the regulation is limited to construction services. In the case Rüffert a German company, which had a contract with Lower Saxony concerning construction services, gave a part of the services to a Polish company. This company didn´t pay minimum wages to its workers and therefore Lower Saxony demanded the contractual penalty promised by the German company. The verdict Rüffert doesn´t have the consequence, that the generally binding collective treaties for the construction sector are no longer binding. There exists a generally binding collective treaty for the regulation of minimum wages in the construction sector, which regulates the wages of workers with low qualifications (bracket 1: in West Germany 10,40 EUR, in East Germany 9,00 EUR; bracket 2: in West Germany 12,50 EUR, in East Germany 9,80 EUR). The wages for higher qualified workers and the salaries for employees are regulated in collective treaties, which haven´t been declared generally binding. Some other collective treaties for the construction sector - one of them contains regulations about vacations - were also declared generally binding.

Non-members and miscellaneously organized employees and employers

If the employer is party of a collective treaty or member of an employer association and the treaty bargained by him or his association hasn´t been declared generally binding, non-members of the contracting trade union can´t reclaim the application of  legal norms for themselves. It is usual that the employers bound to collective treaties promise to apply them in their individual employment contracts. Therefore, employees, who don´t belong to any trade union, in general have the same rights and obligations as members of the trade union, if the employer belongs to an employer association. It is important however, to which employer association the employer belongs to. If he is a member of an association, where contracts are bargained with a Christian trade union, the members of a DGB-trade union can´t reclaim the application of “their” collective treaties. In other words: they are treated like non-members. If the employer doesn´t belong to an employer association, he can agree by individual contract the application of collective treaties.

It often happens, that the content of the individual contract concerning the application of collective treaties doesn´t harmonize with the collective situation. An example is if the employer leaves the employer association or sells the plant. Some of these conflicts can be solved with the principle that the (for the employee) more favorable regulation has priority.

Some current problems

The economic crisis beginning in the ninetees with the end of the boom due to the reunification has, of course, consequences for the collective bargaining system. There are a larger number of employers than before, who try to avoid the appliance of collective treaties and declare the termination of their membership in the employer associations. They often establish new companies or sell plants to non-bound employers. The employer associations have reacted and offer a membership without the obligation to apply the collective treaties. The trade union movement has been weakened too, by a large loss of members. As an example, the number of members in the trade union ver.di decreased from 2,80 million in 2001 to 2,27 million in 2006.

The practice of declaring generally binding collective treaties has changed as well. This instrument has lost importance, because the top employer association decided in the nineties to refuse its agreement in the already mentioned committee in more cases than in the first decades after the Second World War. As an example, the collective treaties in the commerce sector were declared generally binding before the nineties. Nowadays you don´t find generally binding collective treaties in this sector any more. A (limited) form of compensation could be seen by extending the scope of the Arbeitnehmerüberlassungsgesetz  to the industrial cleaning (already generally binding in former times) and the mail carrier. The project to extend it to other sectors finds a large opposition and is accompanied by a very controversial debate about the details.

There is another significant change in the manner, how the trade unions manage their competition. The jurisdiction protects the functioning of the collective treaty system postulating, that only powerful trade unions are enabled to negotiate collective treaties. Recently our

More than in previous times, the DGB-trade unions are under pressure by trade unions not belonging to the DGB. Some of  these unions may undercut the terms contracted by the DGB-unions or may claim more. There has been always a relative cooperation between DGB-unions and unions outside the DGB within so-called collective treaty communities. In this case two or more trade unions bargain the same collective treaty with an employer association or a single employer. This system received ruptures, because some trade unions organizing employees in key positions left the collective treaty community. As an example, in 2005 a trade union for the medical profession terminated the partnership with ver.di and another trade union for the public service area and succeeded in negotiating its own collective treaty with partly better conditions for the physicians of public hospitals after a strike period of five months. A similar conflict happend in 2007/2008, when a small trade union of locomotive engineers claimed its own collective treaty with the German railway companies. After a period of strikes and negotiations of nearly one year the trade union got its own treaty, but this solution was combined with other agreements concerning the membership in the (three) trade unions of the former trade union community.

A cooperation between the DGB-unions and the Christian unions doesn´t exist. You can read in the already mentioned verdict of our

The following facts show perhaps best, which part a Christian union can play in Germany nowadays. In 2002 the German legislator eliminated each temporal limitation for the lending of employees and decided at the same time, that the lending employer has to grant to the lended employee the same essential working conditions, especially wages, as they are granted to a comparable employee by the compay, where the lended employee works. But the legislator allowed, that worse conditions can be negotiated by collective treaties. In the same year six Christian trade unions founded a collective treaty community for temporary employment, which in the following years agreed wages far from the equal-pay-principle. The current wage for workers with a low qualification in the Flächentarifverträge (industry-wide-multi-employment agreements) bargained by the Christian communitiy with some employer associations is 7,21 EUR/h (6,53 EUR/h in the first six month) in West-Germany (in the eastern part less). They even negotiated collective treaties with single employers which allow wages less than 5,-- EUR/h in West-Germany. The collective treaties of some DGB-unions for this sector begins with 7,51 EUR/h.

Most probably our

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