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| The following abstract was prepared by the Federal Constitutional Court and submitted for publication to the CODICES database maintained by the Venice Commission. Abstracts published by the Venice Commission summarise the facts of the case and key legal considerations of the decision. For further information, please consult the CODICES database. | |
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| Please cite the abstract as follows: | |
| Abstract of the Federal Constitutional Court’s Order of 19 June 2020 - 1 BvR 842/17 [CODICES] | |
| Third Chamber of the First Senate Order of 19 June 2020 1 BvR 842/17 | |
Headnotes (non-official): 1. By banning the use of temporary workers as strikebreakers, the legislator pursues aims that are of such great weight that, in principle, they can serve to justify even severe limitations to fundamental rights. This holds true for the aim of ensuring socially adequate employment conditions for temporary workers. It also applies to the aim of ensuring that free collective bargaining, guaranteed as a fundamental right, functions effectively despite the use of temporary workers during labour disputes, which significantly shifts the balance of power to the detriment of trade unions. The challenged provision aims to establish general parity between the parties to a collective agreement. 2. The legislator does not violate the state’s duty of neutrality. Specifically, the legislator is not prevented from altering the framework and terms set out within collective bargaining law in order to restore parity. | |
Summary: I. The applicant, an employer in the entertainment industry, challenged the ban on strikebreakers in § 11.5 of the Temporary Employment Act that was introduced in 2017. According to this provision, the employer cannot let temporary workers fill in for employees taking strike action if the employer’s business is directly affected by such industrial action. The applicant claimed that the ban imposes an unjustified restriction particularly when it comes to choosing which measures to take during a labour dispute, and that this violates their fundamental rights under Article 9.3 of the Basic Law. II. Based on the considerations below, the Federal Constitutional Court decided that the constitutional complaint is unfounded, as the provision does not violate the applicant’s fundamental rights. The freedom of labour coalitions is a fundamental right that is not subject to an express limitation clause. Therefore, restrictions of this fundamental right must be based on limitations inherent in the Constitution itself, such as the fundamental rights of third parties and community values that are afforded constitutional status. However, when the legislator imposes restrictions in order to balance conflicting interests, it enjoys a wide latitude. In principle, it is the parties to a collective agreement themselves that are responsible for adapting their chosen measures to changing circumstances, in order to be on a level playing field with the opponent and conclude a balanced agreement. In this respect, the legislator’s latitude is restricted by the objective content of Article 9.3 of the Basic Law. It is impermissible to endanger free collective bargaining which only works effectively as long as the balance of power between the parties to the collective agreements is roughly equal, i.e. if there is parity. Accordingly, the challenged provision that bans temporary workers from being used as strikebreakers does not violate the freedom of labour coalitions under Article 9.3 of the Basic Law, and it is covered by the legislator’s latitude. When balancing interests against one another while taking account of the burdens it imposes, it becomes clear that the provision is proportionate in the strict sense. Such burdens that are taken into account may be weighty, as a restriction is imposed on employers’ ability to employ temporary workers in order to defend themselves against strike action. Yet the provision does not ban employing temporary workers in general; it merely bans directly or indirectly using them as strikebreakers. Unlike the applicant claims, trade unions also do not have access to stronger and more severe measures to use in the labour dispute. Instead, it is the trade unions in particular who depend upon a fair balance of power in order to negotiate at eye level. |