In the event that employees from a business that is not
strikebound are relocated to a strikebound business of the same
employer, the works council of the supplying business does not have
the right to refuse its consent pursuant to Sec. 99 BetrVG.
On 13 December 2011 the Federal Labour Court had to decide
whether the consent of the works council of the supplying
– not strikebound – business was required in a
case where employees were relocated to a strikebound business at
the employer's instigation in order to combat such strike. The
Federal Labour Court ruled in favour of the employer, which had not
obtained the consents (docket no.: 1 ABR 2/10).
To the extent evident from the currently available press
release, a decisive consideration for the Federal Labour Court was
dispute parity. The requirement that the works council must be
heard and its consent obtained pursuant to Sec. 99 BetrVG is linked
to difficulties which impair the employer's strike defence
measures and thus its dispute parity. This is irreconcilable with
Art. 9 para. 3 German Constitution [Grundgesetz, GG]. Not
considered a decisive factor by the Federal Labour Court was
whether the strike was aimed at the conclusion of an industry-wide
collective agreement ["Verbandstarifvertrag"] or
a company collective agreement specific to the business
["betriebsbezogener Haustarifvertrag"]. However,
also during industrial action the employer must notify the works
council in good time and comprehensively pursuant to Sec. 80 para.
2 p. 1 BetrVG on the employees it calls in as a strike defence
The Federal Labour Court has therewith once again confirmed that
the employer must retain a certain degree of freedom in how it
deploys its staff during industrial action to ensure it does not
face union strike measures – perhaps also at other
businesses of its enterprise – without any own means of
remedy. If sufficient employees who are willing to work are
available, then this makes it possible to flexibly mitigate the
impairments to operations resulting from the strike measures.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Time after time, businesses are faced with (and use themselves) the classic argument in TUPE negotiations: "Of course the employee must transfer under TUPE – he spends more than 50% of his time on the transferring service".
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