DThe intensified combat strategy of the GDL union in its conflict with Deutsche Bahn doesn't just frustrate rail customers. At the same time, calls from politics and science for legal strike rules are becoming louder. To date, Germany is one of the few countries in which there is no strike law, despite a wide range of regulations for other areas of life. What is allowed or not allowed in a strike is usually decided by the unions themselves. And occasionally by the labor courts if an employer tries legal resistance.
However, due to a lack of legal standards, this legal process rarely leads to success. Deutsche Bahn has just experienced this again: After the Frankfurt Labor Court, the Hessian State Labor Court also refused to stop the GDL's so-called wave strikes with an interim injunction on Tuesday.
In such an urgent procedure, no fundamental decisions could be made on questions of the proportionality of strikes, for example within the required notice period, the court argued. It suggested non-binding arbitration. However, the GDL has not yet shown itself willing to do this.
The parties shy away from confrontation with the union
Supporters of statutory strike rules see themselves as even more encouraged by this. So far, tangible proposals have come more from science than from politics – which is probably also because the parties shy away from confrontation with the trade union movement. This is probably why Jens Spahn, deputy leader of the Union parliamentary group in the Bundestag, made an eloquent appeal to Chancellor Olaf Scholz (SPD) on Tuesday, but held back from making any suggestions. “The Chancellor must no longer allow this strike madness to paralyze our country,” he told the “Bild” newspaper. When asked by the FAZ whether he had his own suggestions on the right to strike, Spahn added: “And the traffic light must legally ensure that strikes in critical infrastructure can no longer escalate to such an extent.”
This left it open to what extent corresponding proposals from the CDU/CSU Middle Class Union (MIT) would be supported within their own party family. MIT had already decided on a position paper on this in the fall. For example, it is about making an arbitration procedure mandatory and stipulating a 48-hour deadline for announcing strikes. With the new wave strike tactic, the GDL has now deliberately fallen short of this deadline for the first time.
Collective bargaining autonomy even “when it becomes inconvenient”
However, there are already high-profile calls from science for legal strike regulation. For example by Stefan Greiner, Director of the Institute for Labor Law and Social Security Law at the University of Bonn. In a guest article for the FAZ, he highlights the urgency of an effective climate protection policy – which the Federal Constitutional Court has even obliged politicians to do in 2021. “The main political consequence is the transport transition, which can only be achieved by upgrading public transport systems,” he emphasizes. And that's why the Deutschlandticket was introduced with great effort in order to motivate drivers to change.
Greiner's conclusion regarding the strike law therefore goes beyond mere advice: “It is possible that the constitutionally based urgency of the political climate agenda even condenses the existing options for action into an obligation for the legislature to act,” he analyzes. The political actors, “especially the ministries of labor, transport and economics, are all the more called upon to look for a legal solution.”
Martin Franzen, professor of labor law and civil law at the Ludwig Maximilians University in Munich, also advocates for a law. In the current issue of the “Magazine for Legal Policy” he analyzes that the Federal Labor Court’s case law has brought about a general “deregulation of the right to strike” over the years. This must now be “partially corrected for the area of critical infrastructures through legal framework regulations,” he writes.
However, Franzen has not recently advocated this. Back in 2012, he and his colleagues Gregor Thüsing (Bonn) and Christian Waldhoff (Berlin) presented a draft regulation proposal. However, the federal government strictly rejects this. Collective bargaining autonomy also applies “when it becomes inconvenient,” explained government spokesman Steffen Hebestreit. Bahn and GDL are called upon to provide “sensible and quick solutions”: “But I don’t have anything more to offer than this appeal.”
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