26. Oct 16

BAG: Damages for breach of collectively agreed duty not to engage in industrial action

If a trade union breaches its duty not to engage in industrial action as stipulated in a collective agreement, it renders itself liable to pay damages vis-à-vis its contractual partner. This follows from a recent ruling of the Bundesarbeitsgericht (BAG), Germany’s Federal Labour Court.

GRP Rainer Rechtsanwälte Steuerberater, Köln, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, München und Stuttgart führen aus: If a trade union calls for strike action as a way of enforcing demands that breach a collectively agreed duty not to engage in industrial action, it thereby renders itself liable to pay compensation to its contractual partner. That was the verdict of the Bundesarbeitsgericht in its ruling of July 26, 2016 (Az.: 1 AZR 160/14). It held that the union could not then argue the damage would also have occurred in the event of a strike but in the absence of the demands which breached the duty not to engage in industrial action.

In the case in question, a trade union with a collective agreement between itself and the opponent of industrial action had declared a strike. Part of the collectively agreed arrangements was not to be terminated until the end of 2017. The remaining arrangements could be terminated as of December 31, 2011, which the union took advantage of and at the same time wished to renegotiate these parts of the collective agreement. The end result was a mediated agreement that also concerned parts of the collective agreement which had not yet been terminated. In order to push through the mediator’s recommendation, the union ultimately called upon workers to take short-term strike action. This was brought to an end after around two weeks as a result of a court cease-and-desist declaration.

The contractual partner finally sued the trade union for damages on account of the strike. Following the legal action’s initial failure before the courts of lower instance, it was later successful before the BAG. The 1st Senate of the BAG ruled that the strike had been unlawful, stating that it was to be viewed as a coherent act and was intended as a means of enforcing the mediator’s recommendation. However, the Court noted that this also entailed an amendment to arrangements in the parts of the collective agreement which had not yet been terminated. It went on to say that the contractually agreed duty not to engage in industrial action continued to apply to these arrangements. Consequently, the union ought not to have been able to push through the demands by means of strike action. According to the BAG, the trade union’s objection that it would have organized the strike even in the absence of the demands subject to the duty not to engage in industrial action was irrelevant. The union had acted culpably and was obligated to provide compensation for the loss stemming from the strike.

Lawyers who are versed in the field of collective labour law can advise on all issues relating to industrial action, collective agreements as well as labour participation.

For more informations:

https://www.grprainer.com/en/legal-advice/employment-law/collective-labour-law.html

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