Arbeitsrecht & Tarifpolitik

The principle of collective bargaining unity is a central stabilising element of industrial relations and essential for a functioning autonomy of collective bargaining. Employers and employees must know where they stand and which collective agreement applies to them. Employers' associations and trade unions formulate regional collective agreements - in the case of differing interests - as partners, as provided for in the Basic Law. Insofar as working conditions are not regulated in employment contracts, it is the task of the collective agreement to describe the working conditions. It regulates and pacifies industrial relations. A wide range of opening clauses, which give the parties to the collective agreement room for manoeuvre, and productivity-oriented pay increases document the willingness of the parties to the collective agreement to modernise the system of regional collective agreements in a responsible manner. The system has also proved its worth during the European debt crisis.

The Federal Constitutional Court has repeatedly emphasised that the ordering and pacification of industrial relations are a core task of collective agreements. This function of order and the effect of peace are decisive for the acceptance of collective agreements. Employers and employees must therefore know where they stand and what applies to them. In the overlapping area of collective agreements, different contradictory regulations cannot be applied in a meaningful way. For this, the unity of collective bargaining was necessary as a system of order. For more than 50 years, the Federal Labour Court, as Germany's highest labour court, applied this principle; in 2010 it abandoned it. As a result, there was a danger that collective agreements would no longer provide orientation, would lose their acceptance and that collective bargaining autonomy would become frayed and disintegrate.

In its decision announced on 11 July 2017, the Federal Constitutional Court rightly declared the legal restoration of the collective bargaining unit to be constitutional. The ability of collective bargaining autonomy to function does not only include structural parity between employers and employees. Where trade unions compete with each other, the creation of conditions by the legislature for a fair balance of the interests affected is also part of the functioning of collective bargaining autonomy. The legislature has ensured this through the Collective Bargaining Unity Act. The unity of collective bargaining stabilises the entire system of collective agreements and fulfils the function of order and pacification required by the Federal Constitutional Court.

The Federal Constitutional Court has given the legislature a mandate for concretisation, which the legislature has implemented by adding a second half-sentence to § 4a.2 sentence 2 TVG, without changing the character of the collective bargaining unit as a stabilising element of industrial relations. This addition clarifies that the interests of the "minority trade union" are to be seriously taken into account when concluding the majority collective agreement, which is now legally defined. The amendment chooses a procedural approach and thus does not lead to a review of the content of collective agreements. The principle of collective bargaining unity, which has been declared constitutional by the Federal Constitutional Court, is not called into question. The principle of collective bargaining unity is indispensable for a functioning autonomy of collective bargaining. Employers and employees must know what applies to them.