Two Flink couriers and Works Council founders have been fired, ostensibly for speaking publicly about poor working conditions. Is Flink any better than the scandal-ridden and now-defunct Gorillas? And does German labour law really protect workers who are in conflict with their bosses?
AFTER Getir bought out the scandal-ridden Gorillas in December, one would be forgiven for thinking that the Turkish grocery delivery platform is now the only player that matters in a sector that is quickly consolidating.
Not so. Flink, a Berlin-based grocery delivery platform founded at the end of 2020 with operations in Germany, France and the Netherlands, has not yet fallen into Getir’s grasp (although there were merger talks last year). Flink hit €400 million in sales last year, and expects to be profitable by the end of 2023.
Unlike Gorillas, which was also founded in the German capital, Flink has financially managed its way through the post-pandemic reduction in demand and the drying up of investor cash in the ‘tech downturn’, even having enough money in the bank to buy French grocery platform Cajoo in 2022. When asked what the company had done differently to Gorillas, Oliver Merkel, Flink’s co-founder and chief executive, answered: “We are a very boring company.”
This raises the obvious question: “boring” in what way? Certainly, Flink has managed to keep a much lower media profile than Gorillas, which could be one way of justifying the “boring” tag. But if by “boring”, Merkel means doing things by the book, or avoiding conflict with its workers – two qualities that Gorillas could never have been accused of – then the CEO’s description may be somewhat deceptive.
Just like Gorillas, Flink has fought and is fighting court battles over the firing of couriers who have been integral to attempts to establish a Works Council, following the example of many other groups of couriers in Berlin. A court case is also pending over the legality of the Works Council itself.
The Gig Economy Project has spoken to two of the workers at the heart of this dispute to find out more.
Fired for “defamation”, or worker-organising?
Raúl (full name not disclosed for anonymity purposes) tells GEP that Flink is “definitely not like Gorillas: Flink is smarter, and plays even harder.”
He explains: “Flink learned from Gorillas mistakes. Gorillas was very transparent about its opposition to the Works Council, whereas Flink is the opposite: they say they really want a Works Council, they just don’t want this one.
“The impact on the workers is similar, but Flink do things better than Gorillas did. They are better at finding legal loopholes.”
Raúl was fired by Flink on 27 January after an interview with the German daily newspaper TAZ in which he criticised the working conditions at the company. Flink accused Raúl, who had been working at Flink for a year and a half, of defamation and slander. Raúl denies the accusations, believing he has done nothing wrong, and his case will be heard at the Berlin labour court in May.
READ MORE: Berlin: A new solidarity fund will combat “wage theft” in labour disputes
“I complained to the company many times about the things I said to the press. There was no reaction,” he says. “Flink also had the chance to counter what I said in the TAZ article. This is not about defamation or slander, it’s about union-busting and fear.”
Raúl believes that it is his role in seeking to establish a Works Council (WC) which is the real motive for his firing. The Spanish food delivery courier was one of three names which were given to a judge to appoint a new Electoral Board for establishing the WC. It was after his name was put forward when he “started to feel like a target,” he says.
“I saw some changes in the behaviour of my supervisors and my managers,” Raúl explains. “I was friends with every single person in my workplace, and they were telling me ‘hey they are looking out for you’. So I realised they were hunting.
“I was given 18 written warnings for hardly any reason, like punching in late. Then I did the interview with TAZ. After that, they took all the warnings back and said they were a mistake, but I was fired anyway for defamation and slander.”
Flink’s “union busting strategy”
A current Flink courier and a representative of the Flink Workers’ Collective (FWC), who does not want to give his name for fear of repercussions, tells the Gig Economy Project that Raúl’s case is part of a “union busting strategy” at the company to block the establishment of a Works Council in Berlin.
In September 2022, the wheels were well in motion to establish a WC, after a General Assembly of workers had taken place and an Electoral Board of seven people was established, which was set to hold elections to the WC in the coming weeks. Then in October, Flink told the Electoral Board members that they no longer recognised the body, and would not pay them for time spent on organising the elections. A lawsuit was also filed against those Flink workers that organised the General Assembly, claiming it was illegal. Combined with the later firings of Raúl and another courier who had been involved in establishing the Works Council, Elmar Wigand, the organising foundations for the WC has been dealt several blows by management.
“Those conditions are impossible to work under,” the FWC representative says.
The process for establishing the Electoral Board is now going to the courts, and no conclusive verdict is likely until November. The whole process has been set back well over a year, with key organisers laid-off and others burnt out from the fight. If this is a union busting strategy, it seems to have been largely successful.
READ MORE: Inside Berlin’s food delivery workers movement
According to the FWC representative, part of the reason Flink has been able to get away with this is the lack of full-proof legal protection for workers involved in establishing a Works Council. Workers involved in a WC are supposed to be entitled to a higher level of protection, but Flink has been using what is known as an ‘extraordinary termination’ to get round this.
Under German labour law, extraordinary terminations are supposed to be for urgent situations, such as a worker who has been physically violent, where he or she has to be removed from the workplace immediately because they are a danger to their colleagues. But Flink “treats everything like an extraordinary situation,” the FWC representative says, allowing them to be fired immediately regardless of their role in the WC. Raúl, fired for alleged defamation and slander, was given an extraordinary termination.
“If you go to court and say ‘this is silly, this shouldn’t be an extraordinary termination’, you have to go through the regular process of clarifying a termination case which takes 4-6 months, and at the end of the 4-6 months if the court finds that it wasn’t an extraordinary situation, there is no real punishment,” the FWC representative says.
“The only penalty is that the company has to pay the person the wages for the time they haven’t been working, but there is no additional penalty added. So they are incentivised to make flagrant mistakes with the law, because there’s simply not a big enough penalty against it.”
In the case of Wigand, which was heard in the Berlin labour court on Tuesday [14 March], the judge rejected all the grounds for his dismissal and ruled it invalid, but accepted Flink’s claim that they did not see how a “trusting cooperation” was possible between Wigand and Flink as he had published articles about his working conditions and claimed the company was union busting. Flink drew on Section 9 of the Employment Protection Act, which states that the court can agree a “socially justified termination” of the employment contract if “there are reasons that further cooperation between the employer and the employee that would serve the company’s purposes cannot be expected”.
The bottom line is that two Flink workers and Works Council founders have now been dismissed, ostensibly for making their concerns about working conditions and “union busting” public. The lawyer of Raúl and Wigand, Martin Bechert, is not happy with the courts, saying following Wigand’s verdict that it opens upthe prospect of unlawful firings being made “effective through the back door.” He has previously said that there is an “extreme need for action to protect founders of Works Councils.”
Asked whether Flink has specifically targeted workers who have been involved in trying to form a Works Council for extraordinary termination, a Flink spokesperson told GEP: “Flink follows German employment laws when handling contracts and general employment of its workforce. When it comes to employment termination, we apply standard procedures in line with current employment law.”
READ MORE: Work and resistance in Germany’s platform economy: Interview with Oğuz Alyanak
Asked whether Flink workers were allowed to talk to the media, Flink responded: “Confidentiality is a standard provision in German employment contracts – also at Flink. As in every business, conducting interviews with the press and public disclosure of internal processes without prior authorisation are prohibited for all employees.”
Asked whether Flink has deliberately sought to frustrate the process of establishing a Works Council in Berlin, Flink said that they have themselves “set first cornerstones to empower our employees”, including through establishing “Ops Committees”, where workers are paid for their time and are “exempt from termination”. However, the company added that “as soon as there is a works council in place, such an Ops Committee becomes irrelevant”, adding that Flink “currently” supports “the legal procedure towards a works council”.
The Flink Workers Collective representative responded that the Ops Committees are “just something that the company made up”, has “no independent legal standing”, that the worker representatives on the Ops Committee were “just picked by management” and there was “no way to contact them” for the first 3-4 months*. He added that it was clearly an instrument established to be “a replacement for the works council”, and that Flink’s lawyer has sought to use the Ops Committee in court to argue against the need for a works council.
The same old problems
While the battle over the works council has been rumbling on, workers continue to complain about the same problems which seem to plague super-fast grocery delivery, and were key drivers of the long-running dispute between Gorillas’ Berlin couriers and the company. Firstly, wages unpaid or not paid on time.
“I had a problem in August last year: Flink owed me €300 for a couple of months,” Raúl says. “In the end they pay you if you insist, but if you don’t always check the pay slip, then they are saving money.”
Secondly, the health impact on couriers of carrying such large packages of groceries on their back all day.
“The bag is not a good design for humans,” Raúl says. “It might look pretty cool, but when you have to take the bag on your back up four flights of stairs you are going to suffer, because it’s not even a backpack, it’s like a box. I hurt my back a couple of times and I really hope they change this soon.”
Asked about unpaid wages, Flink said: “We know that we are not perfect and if employees are bringing up mistakes in their payroll, we quickly fix those and compensate accordingly.”
Asked about the safety of its equipment, Flink said they “believe in providing our employees with the best possible working equipment”, are “constantly improving” this.
Flink is of course well within its rights to give those answers. But should the public, including Flink’s customers, not also be able to hear what Flink workers have to say about wages and equipment too? And should German labour law not defend the right of those workers to speak publicly about their working conditions, especially when those same workers are seeking to organise a Works Council at Flink?
The troubling goings on at this “very boring company” raises serious questions about Flink, but also about the German judicial system. Very dangerous precedents are being set which could impact on the rights of all workers in Germany.
*This has been updated to clarify that the Ops Committee representatives were not initially contactable, but they are now
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