The recent, grimly fought labor disputes of smaller, so-called division trade unions might be a thing of the past because of the new law concerning tariff uniformity, which was enacted on July 9, 2015. The spectacular strikes of unions such as the pilots' union Cockpit or the train drivers' union GDL each concerned only a small number of employees of the concerned companies Deutsche Lufthansa AG or Deutsche Bahn AG, but they had a significant financial impact on the supply of the population and the economy with transport services because of the neuralgic significance of the categories of employees who went on strike.
The law concerning tariff uniformity is supposed to limit these possibilities: Subsequently, the union agreement of the trade union with most members has priority, when in a shop several trade unions represent the same categories of employees. This means that within one group of employees, the same work conditions apply, and only the trade union with most members has the right to go on strike.
The principle of the tariff uniformity is, however, not an innovation: It was in fact accepted by jurisdiction for decades, before the Federal Labor Court (Bundesarbeitsgericht) struck it down in 2010 in a groundbreaking decision (file ref. 4 AZR 549/08 of July 7, 2010). Only since this decision is the application of different union agreements for the same professional group – and hence corresponding strikes of competitive trade unions – possible at all. The law is supposed to overturn the decision and to avoid such tariff collisions in the future.
The law is hoped to retrieve not less than the functionality of free collective bargaining. According to the opinion of the legislator, the fragmentation of the trade unions harms the perception of their – constitutionally embodied – duties. The trade unions are obliged by the constitution to maintain order and pacification of the working life. A lack of tariff uniformity would lead to resource consuming conflicts among trade unions, which should be avoided by the tariff uniformity.
However, different union agreements may still apply in the same shop to some extent. In fact, tariff uniformity only applies if the unions involved are not able to find an amicable solution in the case of conflicting union agreements. Then, the union agreement of the trade union with the most members in the shop applies. The smaller trade union is allowed to adopt the union agreement, but is not entitled to go on strike. The relevant reference date is the closing date of the latest concluded colliding union agreement.
Several division trade unions have already announced intentions to file proceedings at the Federal Constitutional Court (Bundesverfassungsgericht). They fear a reduction of their power. It remains to be seen how the Federal Constitutional Court will judge in this matter. An evidence of the constitutionality of the law is that also in the past – despite the principal of tariff uniformity, which was valid until the decision of the Federal Labor Court – division trade unions were able to form themselves. It cannot be foreseen when the Federal Constitutional Court will make a decision. Until then, the law applies.