Today, travelers have it anything but easy in Germany: Extensive strikes in the aviation sector (most recently at Lufthansa and Germanwings) as well as in the railway service initiated by the Trade Union of German Locomotive Drivers (Gewerkschaft deutscher Lokomotivführer, "GDL") virtually paralyzed public life for days. The latest strike has been the longest industrial action in the history of the German railroad company Deutsche Bahn and lasted for more than three days in the passenger and freight services. It is wrong to believe that the continuous debate between the trade union GDL and Deutsche Bahn is once again the classic wage dispute for higher salaries or reduced working hours. The core aspect of the conflict rather refers to the GDL's claim to negotiate not only on behalf of the approximately 20,000 locomotive drivers, but also for other areas of the train crew as well, who are, however, mainly represented by another trade union, the Railway and Travel Union (Eisenbahn- und Verkehrsgewerkschaft, "EVG"). The GDL wants to achieve that Deutsche Bahn as one employer conducts collective negotiations with more than one trade union at the same time, accepting the competition between single trade unions and the risk that different collective bargaining agreements apply to the same employee group within Deutsche Bahn (so-called "Tarifpluralität").
Up to now, Deutsche Bahn has refused to agree on such an approach in order to avoid competing collective agreements within their business operation and considered the latest strike actions unlawful. Interim legal protection claimed at the local and regional Labor Court has been dismissed with the arguments that no unlawful claims have been raised by the GDL and that the strike neither violated the trade union's duty to refrain from industrial action nor can it be deemed as disproportionate considering all the circumstances. Deutsche Bahn has at least partly given in to the demands of the GDL and invited both the GDL and the EVG to parallel collective negotiations, however, without reaching an agreement so far. It is still Deutsche Bahn's and EVG's intention to avoid various collective regulations for the same employee group, which is contrary to the GDL's demands. It therefore remains to be seen how the discussions will commence.
The discussion about the problems resulting from the applicability of multiple collective bargaining agreements within one business operation is not a new one in Germany. During the past decades, it was widely accepted by the labor courts that for the sake of legal certainty and legal clarity only one collective bargaining agreement shall apply. According to the principle of specialty, the one whose scope of application (operational, geographical, personal) was closest to the business operation should prevail (Grundsatz der Tarifeinheit). It was argued that the employer would have to face severe practical problems if he had to comply with more than one collective bargaining agreement. In 2010, however, the Federal Labor Court overruled this principle. Considering that the principle of one collective bargaining agreement violates the employees' and the underrepresented trade union's freedom of industrial association governed by Article 9 Section 3 of the German Constitution when not applying their negotiated collective bargaining agreement , the judges decided that multiple collective bargaining agreements can exist within a business operation and that the employer has to comply with all of the negotiated agreements even if more than one applies to the same group of employees.
Over more than four years after the Federal Labor Court's landmark decision, the Federal Ministry for Labor and Social Affairs has now presented a first draft bill which provides for a new Section 4a Collective Agreement Act (Tarifvertragsgesetz, "TVG") regulating the exclusivity of collective bargaining agreements in Germany. It shall be passed by the German Government in December 2014 and shall come into force, after observing the regular legislative procedure, presumably in summer 2015. According to the draft law, an employer can principally be bound by multiple collective bargaining agreements of various trade unions. However, as far as the scope of non-identical collective bargaining agreements of various trade unions overlaps (so-called colliding collective bargaining agreements), only the regulations of the one concluded with the trade union representing the larger number of members in the business operation shall apply. Decisive for the determination of the precise number of members shall be the point in time at which the latest colliding collective bargaining agreement has been agreed on. In case of colliding agreements, smaller trade unions may claim from the employer to agree on an identical collective bargaining agreement as far as their scopes overlap. At present the draft law does not provide for a regulation referring to the (smaller) trade union's right to strike. It remains to be seen whether such industrial action would be permissible at all, if the collective bargaining agreement would not apply in the end according to the new law. The Federal Minister of Labor, Andrea Nahles, defends the draft law against its critics and acknowledges the freedom of strike as one of the basic rights in Germany which shall not be restricted by the new law. Also the existence of smaller trade unions shall not be affected thereby according to her statement. The law shall rather strengthen the collective bargaining autonomy and social partnership and create opportunities for resolving conflicts between trade unions and companies in cases where collective agreements of different trade unions collide. In particular smaller trade unions criticize that the draft law does not deal with the most important issues, in particular with the question on how a "business operation" is defined and what shall be done in case of unclear majorities. The core argument against the new law is that, in the end, collective bargaining agreements of smaller trade unions will not apply and that the new regulations curtail the unions' right to strike. According to the law's opponents, the solution for such dispute shall rather be reached on the social partnership and trade union level and not by law. If a settlement cannot be reached on this level, each trade union must have the right to initiate strikes for their members as an ultima ratio.
It remains to be seen whether and when the law will actually come into force. On the above-mentioned grounds, trade unions and people in politics, economy and law have raised their concerns over the constitutionality of the draft law and its intention. They have indicated taking legal steps and filing a constitutional complaint at the Federal Constitutional Court in due time, if necessary. Hopefully the GDL, EVG and Deutsche Bahn will find a way to agree on a collective bargaining agreements beforehand and railway traffic can start moving again.