Definitive Report - Report No 362, November 2011

1. 174. The complaint is contained in communications from the Freie Arbeiterinnen- und Arbeiter-Union (FAU) dated 9 April, 16 June and 21 August 2010.
2. 175. The Government forwarded its response to the allegations in a communication dated 11 October 2010.
3. 176. Germany has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 177. In its communications dated 9 April, 16 June and 21 August 2010, the complainant alleges that a local court has incorrectly issued an order denying the complainant’s status as a union, thereby impeding the complainant in its attempts to reach a collective bargaining agreement with the employer in the course of a labour dispute, and facilitating the employer’s demand that the complainant pay a fine for its supposed violation of the order.
2. 178. According to the complainant, the FAU is a German rank-and-file union and represents the German section of the International Workers’ Association (IWA).
3. 179. The complainant indicates that, in the course of a labour dispute of its Berlin section (ASyBerlin) with a local cinema concerning a collective agreement, the aforementioned local FAU section has been denied by a local court the right to collective bargaining and to other measures aiming at collective bargaining, as well as the right to call itself a trade union (Gewerkschaft) or rank-and-file union (Basisgewerkschaft).
4. 180. The complainant further reports that the management of the local cinema has subsequently demanded that a “noticeable” fine (up to €250,000 or prison) be imposed on its legal representatives for supposed infringement of a court decision. In a later communication dated 16 June 2010, the complainant confirms that the Berlin section of the FAU was sentenced to pay a fine of €200 for using the term “union” in its local statutes.
5. 181. In the complainant’s view, both the court decisions and the fine constitute a clear violation of ILO Conventions Nos 87 and 98 ratified by Germany. In its capacity as a relatively small and young organization, the complainant believes that the rights of minority unions as established by the ILO and guaranteed by countries such as Spain, Italy or France are infringed in Germany. The complainant highlights that, while the court decision currently affects solely FAU Berlin, it could easily be applied to any other section of the FAU or similar small organizations in case of labour disputes.
6. 182. In its communication dated 21 August 2010, the complainant informs that the interlocutory injunction against the FAU that prevented it from calling itself a union or grass-roots union has been rescinded. Nonetheless, the complainant states that this important decision does not resolve the main problem underlying the complaint. The court has allowed the FAU to call itself a union as to do otherwise would contravene the freedom of expression; however, the FAU continues to be banned from acting like a union. For instance, it cannot take industrial action and does not have the right to access the workplace of its members.
7. 183. The complainant indicates that the FAU has the right to seek a declaratory judgment before the court on its capacity to conclude collective agreements (Tariffähigkeit) – and thus on its status as a union. However, in the complainant’s view, this procedure violates Conventions Nos 87 and 98 for the following reasons:
   • (i) It would take a long time to complete this procedure (up to two years) and the costs involved go far beyond a simple official registration; thus, the FAU is, according to the complainant, disproportionately disadvantaged.
   • (ii) Equating the capacity to conclude collective agreements with the union status allegedly contravenes the ILO provisions to protect minority unionism.
8. 184. The complainant believes that, while ILO Conventions allow States to pass laws governing collective bargaining, Germany is obviously overreaching itself, in that there is no legal distinction between collective bargaining at company level and at regional level – i.e. the number of members required for a union to be recognized as capable to conclude collective agreements is in the order of regions. In the complainant’s view, this is a violation of ILO Conventions and the reason why the FAU has been prevented from engaging in collective bargaining and has been denied all other genuine union rights.
9. 185. The complainant further highlights the fact that this has not only been a problem for the FAU but also for other unions in the past (e.g. GDL). Finally, it points out that a bill is currently being discussed in Germany that would result in a restriction and impairment of the right to strike, as it would outlaw the existence of multiple collective agreements within one company (Tarifpluralität), which had only recently been permitted by the Federal Labour Court.

B. The Government’s reply

1. 186. In its communication dated 11 October 2010, the Government declares that the complaint is unfounded, and that there has been no violation of ILO Conventions Nos 87 and 98.
2. 187. According to the Government’s understanding, the FAU criticizes: (i) the requirement of the capacity to conclude collective agreements (Tariffähigkeit) in order to be recognized as a trade union having the right to conclude collective agreements and hold a strike; and (ii) the length of the procedure for obtaining a declaratory judgment on the capacity to conclude collective agreements under section 97 of the Labour Court Act (Arbeitsgerichtsgesetz).
3. 188. As regards the first point, Convention No. 87 guarantees, in the Government’s view, freedom of association only in general terms and does not address directly the capacity to conclude collective agreements and the trade union status. The Government indicates that the freedom of association referred to in the Convention is guaranteed in the German legal system by Article 9(3) of the Basic Law, which protects the freedom to form, join or withdraw from an association and provides an institutional guarantee of the right of association. Accordingly, workers and employers, without distinction, have the right to establish organizations of their own choosing. No authorization by the Government or by an administration is required in order to establish such organizations. Workers and employers also have the right to join organizations of their own choosing and without authorization. There is no restriction on the right of workers’ and employers’ organizations to draw up their constitutions and rules, to elect their representatives in full freedom, to organize their administration and activities and to formulate their programmes.
4. 189. Similarly, the Government believes that the capacity to conclude collective agreements and the trade union status are not regulated in Convention No. 98. The promotion of machinery for voluntary negotiation between employers’ and workers’ organizations, with a view to the regulation of terms and conditions of employment by means of collective agreements, mentioned in the Convention, has been implemented in Germany primarily through the Collective Agreements Act (Tarifvertragsgesetz).
5. 190. The Government deems it is compatible with the fundamental right of freedom of association to allow organizations to take part in collective bargaining autonomy, only if they are in a position to shape in a meaningful way, through collective agreements, working life within the space provided by the legal system. In its view, it is therefore not objectionable to make the capacity of workers’ organizations to conclude collective agreements subject to certain minimum requirements, such as a certain organizational structure that enables the organization to carry out its tasks, and the ability to assert itself vis-à-vis their social counterpart, which ensures that the latter cannot reject bargaining offers out of hand. A balancing of interests through the conclusion of a collective agreement is possible only if a workers’ organization is so effective that the employer side will have to engage in bargaining and conclude a collective agreement; otherwise, it would depend on the employer’s goodwill.
6. 191. The Government stresses that, even if a workers’ organization does not yet have the ability to assert itself, it is still an association protected by the fundamental right of freedom of association. The establishment and activity of the association remain free. Individual workers are not prevented from joining the association and contributing to its acquiring the necessary ability to assert itself.
7. 192. As regards the second point, the Government states that, in a social State governed by the rule of law such as the Federal Republic of Germany, a person must, in the event of a dispute, refer to the courts if it feels that its rights have been infringed. Such access to the courts does not, however, rule out the fact that the law provides for fees for use of the court system, the amount of which is set according to the scale of litigation.

C. The Committee’s conclusions

1. 193. The Committee notes that, in the present case, the complainant alleges that a local court has incorrectly issued an order denying the complainant’s status as a union, thereby impeding the complainant in its attempts to reach a collective bargaining agreement with the employer in the course of a labour dispute, and facilitating the employer’s demand that the complainant pay a fine for its supposed violation of the order.
2. 194. The Committee notes the complainant’s indication that, in the course of a labour dispute with a local cinema concerning a collective agreement, FAU Berlin has been denied by a local court the right to collective bargaining and to other measures aiming at collective bargaining (in particular boycott), as well as the right to call itself a trade union (Gewerkschaft). While the interlocutory injunction that prevented it from calling itself a union has been rescinded with reference to the freedom of expression, FAU Berlin continues to be banned from acting like a union (e.g. collective bargaining, industrial action or access to the workplace of its members); from the information available, the Committee notes that, in the absence of trade union status, FAU Berlin is not entitled to participate in meetings of the works council. Furthermore, it notes the complainant’s indication that FAU Berlin has the right to seek a declaratory judgment before the court on its capacity to conclude collective agreements (Tariffähigkeit) – and thus on its status as a union; however, this procedure would be long (up to two years) and costly going far beyond a simple official registration. In the complainant’s view, equating the capacity to conclude collective agreements with the union status contravenes ILO principles. Moreover, there is no legal distinction between collective bargaining at company level and at regional level – i.e. the number of members required for a union to be recognized as capable to conclude collective agreements is in the order of regions. Finally, the complainant points out that a bill is currently being discussed that would outlaw the existence of multiple collective agreements within one company (Tarifpluralität).
3. 195. The Committee notes the Government’s view that the complaint is unfounded and that there has been no violation of Conventions Nos 87 and 98, since they only guarantee freedom of association and collective bargaining in general terms and do not directly address the capacity to conclude collective agreements and the trade union status. The Committee notes that the Government deems it is compatible with the fundamental right of freedom of association to allow organizations to take part in collective bargaining autonomy, only if they are in a position to shape in a meaningful way, through collective agreements, working life within the space provided by the legal system. In its view, it is therefore not objectionable to make the capacity of workers’ organizations to conclude collective agreements subject to certain minimum requirements, such as a certain organizational structure that enables the organization to carry out its tasks, and the ability to assert itself vis-à-vis their social counterpart, which ensures that the latter cannot reject bargaining offers out of hand. A balancing of interests through the conclusion of a collective agreement is possible only if a workers’ organization is so effective that the employer side will have to engage in bargaining and conclude a collective agreement; otherwise, it would depend on the employer’s goodwill.
4. 196. The Committee observes that the present case essentially involves a question of legal recognition of the status of a trade union with the capacity to conclude collective agreements and the negative consequences which the denial of such recognition entails.
5. 197. In this regard, the Committee has always considered that it is not necessarily incompatible with Article 3 of Convention No. 87 (according to which workers’ and employers’ organizations have the right to organize their administration and activities and formulate their programmes without interference by the public authorities) to provide for the nomination of the most representative trade union as an exclusive bargaining agent. Nevertheless, the Committee has pointed out on several occasions that where, under the system in force, the most representative trade union enjoys preferential or exclusive bargaining rights, decisions concerning the most representative organizations should be made by virtue of objective and pre-established criteria so as to avoid any opportunities for partiality or abuse (see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 962).
6. 198. In this context, the Committee notes from the longstanding relevant jurisprudence (most recently confirmed by the Federal Labour Court in its ruling of 28 March 2006) that a workers’ association, in order to have the status of a trade union (Gewerkschaft), needs to fulfil the following minimum requirements for obtaining the capacity to conclude collective agreements. The workers’ association must: (i) have, according to its statutes, the objective of pursuing the interests of its members in their capacity as employees; (ii) be willing to conclude collective agreements; (iii) be freely established, free of “adversaries” and independent; (iv) be organized at a level above workplace level; (v) recognize as binding the current collective bargaining law; and (vi) be able to carry out its duties as bargaining partner in a meaningful way, which implies a certain assertiveness vis-à-vis the social counterpart, a position of strength and a certain efficiency of the organization. The Committee understands that, according to this jurisprudence, the capacity to conclude collective agreements for the claimed area of competence is one and indivisible. For this purpose it is sufficient if the assertiveness and organizational efficiency are not negligible at least in part of the claimed area of competence. A partial capacity to conclude collective agreements, limited to certain regions, professions or industries does not exist. It shall not suffice to possess assertiveness and organizational efficiency vis-à-vis one company or employer. Assertiveness and organizational efficiency of the workers’ association can be evaluated according to the number of its members, the capacity to exercise pressure on the employer owing to the degree of specialization of its members or the fact that it has already concluded collective agreements. Accordingly, only a workers’ association with the capacity of concluding collective agreements has the status of a trade union (Gewerkschaft). The right to take industrial action (including strike, boycott, etc.) is inextricably linked to the capacity of concluding collective agreements (Tarifverträge). However, a workers’ association without that capacity still is protected by article 9(3) of the Basic Law enshrining freedom of association.
7. 199. In the case under consideration, the Committee observes that the Labour Court of Berlin and the Higher Labour Court, in their decisions of 7 October 2009 and 16 February 2010 respectively, have ruled on the basis of objective and pre-established criteria. The Committee takes note, in particular, that the courts held that, since the area of competence of FAU Berlin proclaimed in its statutes was the city of Berlin, whereas the number of its members was around 100 (which meant a degree of organization of slightly above 0 per cent), FAU Berlin did not possess the attributes of assertiveness and organizational efficiency that were necessary to be capable of concluding collective agreements. While the court acknowledged that, being a young organization, its assertiveness and organizational efficiency could only be assessed in a prognostic manner, there was no indication that FAU Berlin could acquire the capacity of concluding collective agreements in the near future. The Committee notes from the relevant ruling that the fact that FAU Berlin had recently shown a not insignificant assertiveness vis-à-vis the local cinema Babylon Berlin, did not suffice to establish the capacity of concluding collective agreements, as this was an individual employer with about 30 employees and thus did not form a non-negligible part of the claimed area of competence of the city of Berlin.
8. 200. The Committee further observes from the longstanding relevant jurisprudence that, in the event of the denial of its capacity to conclude Tarifverträge (i.e. collective agreements with both contractual provisions on the mutual rights and obligations of the parties and normative provisions with direct and mandatory effect on all employment relationships bound by the collective agreement), the relevant workers’ organization has nonetheless the right to conclude with the employer or an employers’ organization accords to the benefit of third parties, which have no normative effect and necessitate that a corresponding arrangement be agreed between employer and employee. In these circumstances, the Committee considers that the court’s non-recognition, on the basis of objective and pre-established criteria, of the complainant as a trade union with the capacity to conclude collective agreements with normative effects, does not infringe the principles of freedom association, the more so because the complainant organization could apply again to the court for recognition of its capacity if the situation changed.
9. 201. As regards the negative consequences entailed by the denial of this recognition and, in particular, the allegation of being banned from acting like a union, the Committee notes that, while FAU Berlin has not been granted by the court the official status of Gewerkschaft (“trade union”), it is still, according to the Government, regarded as an association protected by the fundamental right of freedom of association enshrined in article 9(3) of the German Basic Law, which implies that not only its establishment but also its activities are free and individual workers may join it. Considering that, regardless of the distinct terms used at the national level, FAU Berlin is a workers’ organization falling under the scope of Convention No. 87, the Committee points out the importance which it attaches to the fact that minority trade unions that have been denied the right to negotiate collectively should be permitted to perform their activities and at least to speak on behalf of their members and represent them in the case of an individual claim (see Digest, para. 359). The Committee therefore requests the Government to take all necessary measures to ensure that FAU Berlin may carry on activities that enable it to further and defend the interests of its constituents in accordance with Conventions Nos 87 and 98, in particular publicly expressing its opinion, accessing the workplace of union members and, if it is representative at the level of the relevant enterprise, participating in meetings of the works council.
10. 202. Finally, as regards the complainant’s indication that a bill is currently being discussed that would ban the existence of multiple collective agreements within one company (Tarifpluralität), the Committee understands that the abovementioned legal initiative has stalled. Should the initiative advance, the Committee requests the Government to provide information of any developments in this regard directly to the Committee of Experts on the Application of Conventions and Recommendations.