Strikes: rights and duties in labour disputes

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The right to strike is derived from Art. 9 par. 3 German Civil Code. It is about a collective refusal of the employee to work. The objective of the labour dispute is to enforce new claims to the employer in a collective agreement with regard to income, working time and working conditions. The terms for a lawful strike are

• The trade union responsible calls the strike
• The valid collective agreement has expired
• The employer is bound by the collective agreement. That is the case if he/she is member of an employer association
• The contract of employment must refer to the collective agreement so that it is valid. For this reason, always read the contract of employment
• Pay negotiations have officially failed
• The result of arbitration of a neutral arbitration commission has been refused. The peace agreement expires with it
• A decision to strike by the main director of the board of the trade union is at hand. First, a ballot vote is carried out among the trade union members. A strike is called if at least 75% vote for it
• The labour dispute is carried out fairly. Counting among this are the set-up of emergency services guaranteeing transport to and from, the non-obstruction of strike-breakers and the consideration of economic issues – no strike up to bankruptcy

If these conditions do not pertain, then we are talking about warning strikes or short walk-outs (maybe even during wage negotiations), wild or independent strikes and secondary strikes or solidarity strikes. A wild strike is at hand, if there is no trade union involved. If members of another trade union support employees, then one speaks of a secondary strike. This kind of strike is against the law. The contract of employment is broken. The employee can thus insist in the provision of performance, issue a warning and then terminate the contract and even claim for damages. In the case of an illegal strike lasting more than 1 month, the membership of the health insured person expires. As soon as the strike is organised by the trade union, then it usually a lawful strike.

Fundamentally, all employees can take part in a strike, not only trade union members. Counting among these are apprentices and trainees. Exclude are civil servants, supervisory board members or executive board members. Civil servants are not allowed to be involved in areas of strike. However, they can be called in to help the emergency services or overtime.

The contract of employment comes to a standstill during a strike. In particular, that means that by taking part in a strike, the obligations included in the contract or employment are not contravened, although no work is being done. On the other hand, there is no entitlement to income. Public holiday pay is part of the income, the continuation of pay in cases of illness, the employer allowance of maternity pay, the employer allowance of health insurance. An employee cannot go on leave during a strike unless it had been applied for beforehand or he has already gone on leave. In the case of semi-retirement and a sabbatical, the period of work is extended by half of the days of strike. A dismissal without notice due to participation in a strike is not possible. After the strike is over, the employee is entitled to continued employment.

Nursing care insurance continues during the strike. Annuity insurance also stays in effect; no contributions are made, however, during the strike. For this reason, periods of insurance to be accredited are lacking unless voluntary contribution payments are made. During the dispute, payment towards unemployment insurance is not made. In the case of more than 4 weeks, these periods are not accredited to entitlement. Accident protection by the legal accident protection is dropped during the period of strike especially for the journeys between home and work. Christmas allowance, holiday pay and capital-forming benefits are dropped if the receipt of benefit falls in the month of strike. Periods of striking also decrease the company pension.

Strikebreakers are those who do not participate in the dispute. Some employers offer strikebreaker bonuses. Nobody can be forced to break a strike. Even temporary workers have the right to not co-operate. The temporary employment agency must point this out. In contrast to normal employees, the temporary worker continues to be paid in spite of the walkout. The agency can, however, place him/her in another company where there is no strike. Even one-euro jobbers cannot be forced to work in a company on strike. Refusal to work does not lead to a shortening of unemployment benefit.

Trade union members in contrast to non-members are entitled to claim the payment of strike money from the trade union. The membership fee that is paid to the trade union is usually 0.66 to 1% of their monthly gross income. Pensioners, recipients of sick pay, the unemployed and employees in early retirement pay between 0.33% of the minimum fee and a maximum of 0.66% of their gross income.

The employer can react to the strike with lockouts.

• Make sure it is a legal strike organised by the trade union. Otherwise you run the risk of a warning, dismissal or a damage suit
• Clarify to what extent you are obliged to an emergency service. Refusing can lead to a dismissal for extraordinary reasons and to claims for damage
• Emergency service agreements are to be made public
• Do not make use of any of the employer's rooms or objects during the dispute
• Do not hinder employees willing to work, so-called strikebreakers and visitors. Do not block a company's access routes by using strike posts and blockades
• If you fall ill during a strike, you must turn to your health insurance company. You have no entitlements towards your employer until after the strike is over
• Inform your health insurance company immediately when falling ill, in order to be able to get sick pay
• Remember that other rules apply (see above) when a strike last longer than a month
• Put your name on the strike list as a trade union member; you will then receive strike pay
• You can work out your strike pay by dividing your gross income by the number of days of the strike month and by multiplying this by the number of strike days