Recuperation assistance (only) for members of trade unions

The employment-law principle of equal treatment is not applicable if employer and trade union reach an agreement, within the scope of collective wage negotiations, to the effect that specific supplementary benefits are to be provided for trade-union members.

Within the framework of collective wage negotiations at Adam Opel AG, restructuring measures were agreed which also included provisions for a lowering of wages under the collective agreement. The IG Metall trade union made its consent conditional on privileged treatment for its members. The employer side complied with this request. Adam Opel AG joined the so-called Saarverein (Saar Association) which, under its constitution, provides so-called recuperation assistance to members of IG Metall. The joining agreement provided for payment by Adam Opel AG of an amount of 8.5 million EUR. The Association gave an assurance that it would pay recuperation assistance of 250 EUR gross per annum to the members of IG Metall employed at Adam Opel AG. The claimants in the proceedings pending before the Federal Labour Court were not members of IG Metall. They did not receive recuperation assistance. They took legal action against Adam Opel AG and based their claim to payment on the employment-law principle of equal treatment.

No violation of the principle of equal treatment

The Fourth Senate of the Federal Labour Court dismissed the action as had the Hesse State Labour Court in the previous instance (judgment dated 19 November 2012, 17 Sa 285/12, 17 Sa 134/12). The reasons for the decision are not yet available. In the press release, the Court explained its decision essentially by stating that the matter does not concern the area of application of the employment-law principle of equal treatment: The joining agreement was part of a restructuring package with the involvement of the parties to the collective wage agreement. Collective agreements of this nature are not to be measured against the employment-law principle of equal treatment. This is the case irrespective of whether or not the benefits, to be enjoyed only by trade union members, have been regulated in a collective wage agreement or in a coalition agreement governed by the law of obligations. Given the assumption of the appropriateness of contracts of associations capable of being a part of collective agreements, no check will be made on the basis of the employment-law principle of equal treatment.
 
Recuperation assistance as concealed collective-wage-agreement bonus

The decision shows the (indirect) methods now used by the parties to collective wage agreements to obtain a collective wage- agreement bonus for trade union members. However, even if the route via the Saarverein had not been chosen and the recuperation assistance had been regulated in a collective wage agreement as employer benefit to trade union members, this would have been admissible. The system of the law on collective bargaining is aimed at differentiating between trade union members and employees not bound by collective wage agreements (so-called outsiders). Under the case law of the highest court, a collective-wage-agreement bonus for trade union members should be admissible, provided the collective wage agreement does not prevent the employer from creating equal treatment for outsiders, and does not result in any excessive pressure to join the union which would violate the negative freedom of association of the outsiders. In the case at hand, both would have to be answered in the negative given the level of the recuperation assistance.

Summary

Reference to the collective wage agreement in contracts of employment is ever-present in day-today company practice. This devalues membership of trade unions. As a consequence, trade unions have discovered the so-called collective-wage-agreement differentiation clause, aimed at ensuring exclusive benefits for their members, in recent years. This has revived the debate as to whether and, if applicable, what differentiation clauses are admissible. Legal and collective-agreement-policy considerations have resulted in further developments in the formulation of collective wage agreements. The new method of involving an association sympathetic to the trade unions has been approved by the Fourth Senate.