According to recent surveys, less than 20% of employees in Germany are still unionised. These figures are, of course, alarming for the trade unions themselves. In the fight against their own insignificance, they are anxious to strengthen their membership base again. How better than to remind workforces of their existence in a variety of ways? However this tends not to be positively received by employers. This article is intended to provide some initial guidance on the respective rights of trade unions and employers.
The rights of trade unions can be roughly divided into ‘creation’ rights, participation and consultation rights, control rights, advertising and information rights and access rights. These rights are predominantly regulated in the Works Constitution Act, but they are also derived from other laws and in part, directly from Art. 9 (3) of the German Constitution.
Trade unions have rights in connection with forming employee representation bodies where none existed previously under the Works Constitution Act. For example, trade unions may have the right to initiate works council elections under s17 (2), (3) of the Works Constitution Act. But even if a works council has already been formed, trade unions can sometimes exert influence in organisations (and on works councils). In particular, the works council must call a works meeting on the initiative of a trade union represented in the establishment, if such a meeting has not taken place during the preceding calendar half-year (s43 (4) of the Works Constitution Act).
Participation and consultation rights
Trade union representatives can, under various conditions, participate in meetings of the works constitution bodies (e.g. works council, youth and trainee representatives) or in works meetings (in an advisory capacity). According to s31 of the Works Constitution Act, for example, the works council can invite a representative of a trade union represented in the works council to its works council meetings in individual cases, but also generally.
From the employer’s point of view, it is important to know that the right to participate is basically limited to formal works council meetings. Trade union representatives do not have the right to participate in all discussions between the employer and the works council. However, representatives of unions represented in the organisation may participate in works or divisional meetings in an advisory capacity without the need for a prior resolution of the works council (s46 (1) Works Constitution Act).
Trade unions represented in an establishment have the right to monitor compliance with the provisions of the Works Constitution Act by the employer and the works council. They can apply to the Labour Court for sanctions to be imposed for gross violations of statutory obligations which can lead to the exclusion of members from the works council or to the dissolution of the works council in its entirety (s23 (1) Works Constitution Act).
If an employer grossly violates its duties under the Works Constitution Act, a union represented in the establishment may petition for a so-called ‘coercive procedure’ to enjoin the employer to take or refrain from action under s23 (3) of the Works Constitution Act. Further, trade unions represented in the establishment are entitled to apply for the prosecution of criminal offences against bodies formed under the Works Constitution Act (s119 paragraph 2 Works Constitution Act).
Advertising and information rights
Trade unions have the right to recruit members in the workplace and to distribute information materials. This right is derived from the constitutionally guaranteed freedom of association in Art. 9 (3) of the German Constitution. The details of the exact limits to this right, however, are controversial. To date, the courts have not given trade unions a free pass to advertise in establishments. For example:
In order to exercise the rights described above, trade union representatives (from outside the organisation) must sometimes be granted access to premises. This is a frequent source of conflict between employers and trade unions. A legal distinction must be drawn between types of access, explained below.
Access rights on the basis of works constitution law
Regarding the exercise of rights under the Works Constitution Act (particularly creation rights, participation and consultation rights, control rights), s2 (2) Works Constitution Act contains a legal basis for trade unions accessing the establishment. This right is strictly linked by law to the tasks and powers of the trade unions under works constitution law.
Nevertheless, case law is relatively generous here. As soon as a matter has a connection with a trade union task under works constitution law, the trade union has a right of access. It should be sufficient for the works council to ask a trade union represented in the organisation for support. In these situations, employers can only refuse a trade union represented in the organisation access to premises if unavoidable operational necessities, mandatory safety regulations or the protection of trade secrets stand in the way. In order to check this, trade unions are generally required to announce their visits in good time, stating the purpose of the visit, so that employers can check access authorisation in advance.
Access rights on the basis of constitutional law
Access rights to the establishment for trade union representatives to exercise advertising and information rights are highly controversial. The courts regularly grant trade unions a right of access to the establishment derived from Art. 9 (3) of the German Constitution. However, this is subject to strict limits in order to protect the conflicting domiciliary and property rights of the employers. Before granting access, employers are entitled to establish whether the trade union’s presence will disturb work or the peaceful operation of the establishment.
Trade unions usually have to announce their visit at least one week in advance. In view of the potential frequency of visits by trade unions to an establishment to recruit new members, the Federal Labour Court generally considers one visit per calendar half-year during breaks to be appropriate.
Important: trade unions have no right to enter an employer’s premises against the employer’s will. Instead, legal action must be taken in the labour courts.
Trade unions have a strong legal position in German labour law. Depending on the sector, as many trade unions fight against their declining influence, employers can expect to receive more frequent visits from trade union representatives. The best way to deal with this from an employer’s point of view depends on the level of organisation of the workforce and how well employers and trade unions have cooperated in the past.