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16 June 2010
The Berlin-Brandenburg Labour Court recently ruled that the Works Constitution Act did not give the flight crew of a German-based airline the directly enforceable right to elect its own works council. The court held that the crew would have been in such a position only if a collective bargaining agreement had been reached with a trade union explicitly providing for such a co-determination scheme.(1)
A UK airline maintained a base at Berlin-Schoenberg airport, employing around 300 flight crew (ie, cabin staff and pilots). The employment relationships were governed by UK law, pursuant to a choice-of-law clause. The employees intended to form and elect their own works council and establish their own co-determination scheme pursuant to the provisions of the act.
Section 117(2) of the Works Constitution Act stipulates that airline crew may not automatically implement a co-determination scheme and elect their own works council directly (as employees of other companies may do), but may do so only on the legal basis of a specific collective bargaining agreement between the company and a competent trade union, which explicitly provides for a co-determination scheme.
Based on this provision, the German trade union Vereinte Dienstleistungsgewerkschaft (often abbreviated to 'ver.di') approached the airline and requested the conclusion of a specific collective bargaining agreement in order to establish such a co-determination scheme. The airline refused.
The flight crew then started its own election procedure, arguing that the statutory requirement to have previously entered into a negotiation procedure and reached a formal collective bargaining agreement allowing such elections was ineffective, since the relevant provision of Section 117 of the act violated the EU Information and Consultation Directive (2002/14/EC).
The airline applied to the local labour court for injunctive relief and requested the court to prohibit the employees from instigating further works council elections.
The second instance labour court issued the injunction and the crew were obliged to halt the election procedure.
The court held that the requirement to have previously reached a collective bargaining agreement allowing for the implementation of a co-determination scheme for flight crew did not violate the directive. The court argued that the purpose of the directive is to establish a general framework setting out minimum requirements for the right to information and consultation of employees in companies and establishments within the European Union.
The practical details and arrangements regarding information and consultation must be defined and implemented in accordance with national law and industrial relations practices in each individual member state in such a way as to ensure their effectiveness. In accordance with these principles, the member states must determine the practical arrangements for exercising the right to information and consultation at the appropriate level.
The removal of flight crew from the scope of the act and referral to a competent trade union to create a co-determination scheme for such employees was considered to be fully consistent with the directive. Although the directive aims to guarantee and align the consultation and information of employees of companies within the European Union, it does not aim to modify co-determination and representation structures. Therefore, referring the primary competence to a trade union did not contravene the terms of the EU directive.
German co-determination rules do not directly and automatically apply to airline flight crews. The act does not grant such employees the right to elect a works council and exercise co-determination rights at their own initiative and discretion. Rather, flight crews must obtain the support of a competent trade union. However, a trade union representing pilots and flight crew may at any time start negotiations with the company to conclude a collective agreement aimed at implementing a co-determination scheme pursuant to the act.
Depending on the negotiations and strike pressure and on formation stipulations, such representative body could then assume a wide range of co-determination rights as regards overtime hours, shift plans, social staff interests and individual re-assignment, hiring and termination measures.
If negotiations between the airline and the trade union stall or fail, employees may strike with the aim of concluding a proposed collective agreement and initiating operational co-determination.
In order to be legal, a strike must meet certain formal requirements. Thus, as soon as there is collective referral on starting a co-determination scheme, the airline should take action. By active engagement in early discussion, further escalation can very often be avoided.
For further information on this topic please contact Julia Zange at Arnecke Siebold Rechtsanwälte by telephone (+49 69 97 98 85 0), fax (+49 69 97 98 85 85) or email (firstname.lastname@example.org).
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