Plurality of collective wage agreements – questioning concerning trade-union membership

BAG 18.11.2014 – 1 AZR 257

Even if the Federal Cabinet adopted draft legislation for a law on uniform collective wage agreements in December 2014, the principle of plurality of collective wage agreements remains applicable until such time as this comes into effect. The scope of any related right of employers to ask about membership of a trade union is the subject of a new decision by the Federal Labour Court. Plurality of collective wage agreements is understood as meaning the phenomenon that several collective wage agreements claim to apply in a company for different employment relationships, without claiming application for the same employment relationship; the last of these cases is the so-called multiplicity of applicable collective wage agreements. Having given up its case law on so-called uniform collective wage agreements (application of just one collective wage agreement) given plurality of collective wage agreements through a decision in 2010 (BAG 7.7.2010 – 4 AZR 549/08), the Federal Labour Court was now required to clarify a follow-up question.

Consequential problem of plurality of collective wage agreements.

It had to decide whether an employer in a company with a plurality of collective wage agreements has the right to enquire concerning the respective trade-union membership of the employees. In its decision, the Federal Labour Court was able to leave the question unanswered of whether an employer fundamentally enjoys this right or not in a company with a plurality of collective wage agreements. This possibility resulted from the fact that, in the legal dispute now decided by the Federal Labour Court, the trade union had motioned for the employer to be ordered to refrain from questioning the employees of its company concerning membership of the trade union in question; this motion covered all conceivable questions and was too broadly defined, meaning that it could not succeed for this reason alone.

Exceeding the limits of the right to ask questions.

Irrespective of this, the Federal Labour Court indicated that, in the specific case, the employer had, through the form and nature of the questioning, by all means violated the basic right of the trade union taking action under Art. 9 Subsection 3 Basic Law (basic right to act in coalition). Because the purpose of the employer’s question was not, for example, to determine the members of the trade union, with which the employer had already concluded a collective wage agreement and which he intended to apply to the members of this trade union following determination. Rather, the purpose was to identify the members of the trade union (taking legal action) that had called on its members to participate in a strike ballot, because it was unable to agree on a collective wage agreement with the employer. The question asked by the employer was aimed at finding out who would participate in a forthcoming strike, so as to be able to prepare accordingly and, by so doing, reduce the effects of the strike. The questioning was therefore aimed at influencing the forthcoming industrial dispute. This was the fact triggering the inadmissibility of the question.

The Federal Labour Court did not ascertain any general inadmissibility of the employer’s enquiries concerning respective trade-union membership in a company with a plurality of collective wage agreements. Given a justified interest on the part of the employer, which is not offset by prevailing interests of the employee, the question will be admissible. As set out correctly in the reasons of the previous instance for its judgment, the employer’s interest will by all means prevail if the matter involves clarification of the question of which work conditions are applicable to an employment relationship. Without knowledge of the corresponding wages, the employer is unable to calculate the social insurance contributions, as their level is based on the wage owed and not on that paid (LAG Hesse 7.11.2012 – 12 Sa 654/11).

By contrast if, in exceptional cases, trade-union membership is not of interest because the employment contracts make reference to the more favourable collective wage agreement for the employees anyway, the right to question is unlikely to exist.

Summary

Given a prevailing justified interest in the answer, the employer in a company with a plurality of collective wage agreements is entitled to ask his employees concerning their respective trade-union membership.