An employer may not allow temporary agency workers to work if its operations are directly affected by a labor dispute. This has been stipulated in the revised Temporary Agency Work Act since 2017. Temporary agency workers may not be used as strike breakers. The Federal Constitutional Court has confirmed this—and rejected a constitutional complaint filed by a movie theater operator.
The judges’ reasoning: If temporary agency workers were used as strike breakers, strikes would become ineffective, thereby shifting the balance of power in collective bargaining disputes to the detriment of the unions. With the legal ban introduced in 2017, the legislature curbed the increasing use of temporary agency workers during strikes and thus restored parity between unions and employers.
Federal Constitutional Court Upholds Position of DGB and IG Metall
The DGB unions welcome the decision of the Federal Constitutional Court. In addition to the federal government, the Federal Ministry of Labor and Social Affairs, the Federal Labor Court, the German Federal Bar Association, the Confederation of German Employers’ Associations, and the employers’ associations of the metal and electrical industries, the German Trade Union Confederation (DGB), IG Metall, and ver.di also submitted statements on the constitutional complaint prior to the court’s decision: If the use of temporary agency workers in companies affected by strikes were unrestricted, the unions would otherwise have no means left to exert pressure on the negotiating counterpart. Negotiating parity would not only be disrupted but would cease to exist altogether.
In its decision, the Federal Constitutional Court essentially concurred with the unions’ position: “It must be taken into account that the unions, in particular, are dependent on a balanced balance of power in labor disputes,” the court stated in its reasoning. “They cannot turn to other bargaining partners but must, in order to negotiate their positions on an equal footing, be able to exert sufficient pressure on the employer side through the use of industrial action. The employer side is not dependent on this to the same extent. It has control over the means of production, investments, locations, and jobs and therefore regularly possesses considerable potential to exert pressure.”
Reasons for the Decision of the Federal Constitutional Court
