Benedikt Hopmann is the lawyer for three Gorillas app-based grocery delivery workers in Berlin, who were fired in 2021 after participating in a wildcat strike. On Tuesday [25 April], the workers challenged their dismissal on the basis that Germany’s restrictive laws on the right to strike are in breach of international law, do not correspond with the reality of modern work and are a hangover from the country’s Nazi-era. They lost the case, but will appeal to the German Federal Labour Court. Here, Hopman outlines the argument for a comprehensive right to strike.
This piece is translated into English and cross-posted from Hopman’s Widerstaendig.de website (original in German)
THE central argument used to justify these layoffs is that the right to strike is solely aimed at concluding collective agreements.
On the one hand, it is derived from this: The political strike is forbidden because it is not aimed at the conclusion of collective agreements, but at state action, at laws. And on the other hand, this should result in the prohibition of strikes without association: Because the right to strike is aimed solely at the conclusion of collective agreements and only unions can conclude collective agreements, only unions are allowed to strike.
Far be it from us to question the need for strong unions. Only they are powerful enough to enforce collective agreements with employers. We do not question the fact that only unions should be able to conclude collective agreements that have a similar effect to laws.
Our question is quite different: should the right to strike be limited to this goal alone? Should dependent employees only be allowed to strike if the strike is aimed at a collective agreement? Should a strike only ever be about collective agreements? Our answer is no, work stoppages must not be limited to this goal.
When the employees of Gorillas are outraged that their wages are not paid on time and in full, and they no longer want to accept this and demand a contractual penalty for the future so that Gorillas finally pays everyone’s wages on time and in full, and if they stop working because of it lay down, then that must be allowed, especially when you consider that union organization of gorilla workers is extremely difficult, because more than half of the workers there have so-called “working holiday” visas and after six months their employer because of it have to change. Half the workforce is different every six months.
The employees did not aim to conclude collective agreements. They wanted to ensure their wages were paid on time and in full, and they also wanted inequality to end; because for the same activity some received €10.50 and the others €12. After the strike in October, they actually charged €12.00 for everyone. So it works. And no union can object to gorilla wages being equalized in this way.
Incidentally, it’s nothing unusual when an employee is dissatisfied with their wages and goes to their boss and says “Hey Boss, I need more money”, as Gunter Gabriel sang years ago. It also happens that several employees come to the conclusion that they need more money and tell their boss that too. They shouldn’t be allowed to go on strike. We don’t want to accept that.
The following connection is also important: If the prevailing case law only focuses the strike on the conclusion of collective agreements, it is not just about strikes without an association. It’s not just about dependent employees who go on strike without calling the unions and therefore act illegally according to the prevailing case law. No, it’s always about the trade unions. The focus of the strike solely on the conclusion of collective agreements is primarily directed against the unions.
If the unions want to strike for a goal that does not exist in a collective agreement, then according to the prevailing case law they should be forbidden to do so. If the trade unions want to protest against the 10 murders in Hanau, if they want to protest against armament and war, if they want to protest against the overheating of the climate in the workplace, they should be forbidden to do so. They then violate the dogma that strikes are only allowed if they are aimed at concluding collective agreements. If they are against raising the retirement age – after all, this is about extending the working life – they should only be allowed to demonstrate outside the company. They should stay still in operation. You can publish a press release.
With this restriction of union autonomy to collective bargaining autonomy, the unions are subjected to the policies of those in power, whatever that policy may be.
Governing policy is expressed in government action and regulated by law, but not by collective agreements concluded with companies. Certainly there are things that can and are regulated by laws and collective agreements. For example the working hours. But large parts of politics elude regulation by collective agreements. We’ve already listed examples: The far too hesitant action of politicians against global warming, armament and war, the murder of colleagues by neo-Nazis in Hanau, which politicians were unable to stop. Even if the government wants to enforce a law raising the retirement age for everyone from 65 to 67, it must be possible to demonstrate against this law during working hours.
We only have to look at our neighboring country France and know what is meant. We only have to compare how the trade unions in Germany reacted when a law was passed under the Schröder government raising the retirement age from 65 to 67, and how the French people have responded to Macron’s increase in the retirement age in recent months reacted. Some say it’s just a different culture in France, the French are just different etc. etc. But the decisive point is quite different: the decisive difference is the right to strike. The unions are afraid of being overwhelmed with claims for damages if they went on strike like the French. What is forbidden in Germany is allowed in France. Some claim to be on strike against the government be undemocratic. But do we seriously want to claim that the Germans are better democrats than the French, who after all live in the motherland of the bourgeois revolution? No, it is exactly the other way around: it is not the political strike in France that is undemocratic, the ban on even the political demonstration strike in Germany is undemocratic. Democracy doesn’t just mean casting the ballot every few years, democracy means taking part in the political process.
Neither the defendant nor the case law can justify the restriction of the right to strike in Germany. And this despite the fact that, in my opinion, the right to strike is the most important right to freedom.
There is only one reason given by the Federal Labour Court for the prohibition of strikes without association: That is the decision of 1963. The basis is a decision of the large Senate from 1955. The Federal Labour Court refers directly to this. It is characterised by the formula: Strikes are ” generally undesirable”. The Federal Labour Court quotes this formulation and then says that it is important to have controls “that strikes are only carried out in really justified cases.” [1] That is the task of the trade unions. To ensure that, only the unions are allowed to call for a strike. The union in industrial action not as a representative, but as a controller of the unions.
We would like to remember the former Berlin labour judge Otto Kahn-Freund. His name is on a plaque at the entrance to the Labour Court. In 1933 he was banned from working not only because he was a Jew, but also because of his legal convictions and attitude. After fleeing to England, he became an important lawyer and professor at the University of Oxford. He criticised early on that as a result of the labour case law of the Reich Labour Court, “the protective function of labour standards was superimposed by a pacification function, that trade union autonomy was functionalised as a central means of freeing employees in the overriding corporate and macroeconomic interest.” [2] This is exactly what is at stake when trade union autonomy is limited to collective bargaining autonomy.
Decades ago, IG Metall stated in one of its annual reports on the illegalisation of non-affiliated strikes by the judiciary: “In the guise of an alleged trade union monopoly on strikes, the unions are being put between the chairs and the colleagues who have taken part in spontaneous work stoppages are being exposed to arbitrariness the entrepreneur suspended.” [3]
Our arguments for the right to strike without association and politically:
1.1. The restriction of the right to strike to the conclusion of collective agreements violates the wording of Article 9 Paragraph 3 of the Basic Law (see 1.2), against the history of case law on this fundamental right (see 1.2, 1.4), against the democratic and welfare state requirement of Article 20 GG (see 1.3) and against international law (see 1.5).
1.2. The restriction to the conclusion of collective agreements ignores the wording of this fundamental right. Art. 9 para. 3 GG does not speak of trade unions, but of “associations”, not of the conclusion of collective agreements, but of “maintaining and promoting working and economic conditions”. A restriction to collectively regulated conditions cannot be inferred from this. If all working and economic conditions that cannot be regulated by collective agreements are declared a taboo for union action and even a demonstration strike lasting just a few hours is made illegal, then this is a serious weakening of the unions, which do not deal with the wording of Art. 9 para. 3 GG is compatible.
1.3. The exclusive focus of the right to strike on the conclusion of collective agreements is also incompatible with the democracy and welfare state guarantee of Article 20 of the Basic Law. This guarantee is aimed at active participation in the political process of shaping working and economic conditions and is not limited to elections.
1.4. On the other hand, the right to strike with the limitation to the conclusion of collective agreements is placed in an anti-democratic tradition, with which liberated Germany wanted nothing more to do in the first years after the Second World War. The Weimar Republic had very significant restrictions on the right to strike, but not the restriction of the right to strike to the conclusion of collective agreements and thus the ban on non-organizational and political strikes. This restriction has its roots in fascism, which completely crushed the unions and strictly prohibited any strike.
1.5. This is matched by the continued violation of international law. International law does not recognize the exclusive orientation of the right to strike to the conclusion of collective agreements and strikes carried out by trade unions. Art. 6 No. 4 ESC is to be used when interpreting the Basic Law; this also applies to the other relevant international treaties. The principle that the Basic Law is open to international law applies.
1.6 Interim conclusion: The judgments of the regional labour court and the labour court must be overturned. The invalidity of the terminations must be determined.
2. The regional labour court should have allowed the legal review by the federal labour court (revision). This is for the following two reasons
2.1 The Federal Labour Court has never examined whether strikes without association are protected by the fundamental right to strike and on what grounds it intends to justify dismissal for participation in such a strike. Therefore, references to decisions of the Federal Labour Court do not help.
2.2 In addition, the special circumstances of the present case make a trade union strike more difficult to such an extent that one can no longer speak of a right to strike. This is not only a violation of the right to strike, which applies to migrants as well as to all other workers, but also unequal treatment for which there is no justification either.
2.3 Conclusion: We will appeal to the Federal Labour Court against the non-admission of the appeal
References
| ↑ 1 | Federal Labour Court of December 20, 1963 – 1 AZR 428/62 reasons for decision B II. 3. e., p. 31 |
|---|---|
| ↑ 2 | Hans Bergemann, Berlin Friends and Sponsors of Labour Law (ed.) “Jewish Judges in Berlin-Brandenburg Labour Courts” Leipzig 2023, p. 96 |
| ↑ 3 | M. Kittner, labour dispute Munich 2005, p. 685 |
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