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ATCU, an accountable and democratic independent Union founded to address the issues affecting all our colleagues and to meet the aspirations of all those working in the rail industry.
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In Germany there is no legislation which concerns the exercise of the right to strike. Instead, general principles which unions are required to observe have been established by the caselaw of the Federal Labour Court. Such principles are more concerned with the aims and results of strike action than with the procedures to be followed prior to strike action occurring.
Germany’s right to strike enjoys an ‘indirect’ constitutional guarantee where the right of freedom of association is constitutionally guaranteed. By extension, the right to take part in an association’s activities is also guaranteed. In the case of an ‘association’ of workers (i.e. a trade union), those guaranteed activities include strike action.
Strikes must be “proportionate” to the goal pursued – ones which entail the “annihilation or erosion of the employer’s assets” are forbidden – and cannot start as long as negotiations are still taking place, even if the period of the “peace obligation” laid down by collective agreements in Germany is exhausted. The “ultima ratio” principle applies to strikes in Germany, i.e. they can be used only as a last resort. Therefore the primary action must be lawful and the solidarity strike necessary, fair, reasonable and proportionate.
Only a body entitled to conclude a collective agreement (in practice: a trade union) can call a strike in Germany. All strikes must have as their aim the conclusion of a new collective agreement. Any strike in pursuit of an aim that cannot be legally part of a collective agreement is unlawful, as too is any strike which seeks to amend an existing collective agreement (as such a strike would be in breach of the “peace obligation”).