Solidarity as a Central Aim of Collective Labour Law?

doi:10.1017/9781009170260.003

3 - Solidarity as a Central Aim of Collective Labour Law?

Published online by Cambridge University Press: 03 November 2022

Reingard Zimmer

Edited by

Julia López López

Show author details

Julia López López: Affiliation:
Pompeu Fabra University, Barcelona

Book contents

Summary

Solidarity is one of the rights mentioned as a central value in the preamble of the Charter of Fundamental Rights of the EU and it is the title of chapter IV which contains with Art. 27 (workers’ right to information and consultation within the undertaking) and Art. 28 (right of collective bargaining and action) central rights of collective labor law. The protection of the weaker party is the central idea, both in individual labor law and in collective labor law. But to which extent does that include the idea of solidarity? If solidarity would be the basic idea of the concept of collective labor law, this would imply a strong social approach. The following elaboration looks for an attempt of a definition and analyzes the components of solidarity in collective labor law based upon European and German Labor Law, bearing in mind provisions and jurisdiction on trade union rights, collective bargaining, the right to strike and on European and German works councils. Besides a legal analysis, sociological methodology is also applied, when the internal and external dimension of solidarity or the concept of inclusive and exclusive solidarity are presented.

Keywords

inclusive solidarity exclusive solidarity strike Charter of Fundamental Rights collective rights German labor law works councils

Type: Chapter
Information: Inscribing Solidarity
Debates in Labor Law and Beyond
, pp. 43 - 62

DOI: https://doi.org/10.1017/9781009170260.003 [Opens in a new window]

Publisher: Cambridge University Press

Print publication year: 2022
Creative Commons: This content is Open Access and distributed under the terms of the Creative Commons Attribution licence CC-BY-NC-ND 4.0 https://creativecommons.org/cclicenses/

3.1 Introduction

Solidarity is one of the rights that the Charter of Fundamental Rights of the EU (CFR) mentions as a central value in its preamble and it is the title of Chapter IV, which contains Art. 27 (workers’ right to information and consultation within the undertaking) and Art. 28 (right of collective bargaining and action), central rights of collective labour law. The protection of the weaker party is the central idea, both in individual labour law and in collective labour law. But to which extent does that include the idea of solidarity? If solidarity would be the basic idea of the concept of collective labour law, this would imply a strong social approach. The following elaboration looks for an attempt of a definition and analyses the components of solidarity in collective labour law based upon European and German Labour Law.

3.2 Attempt of a Definition

3.2.1 Solidarity in History

Signs of the concept of solidarity can be found very early in history. Already in Roman Law, which was developed between the middle of the fifth century bce and the third century ce as a general set of rules carved in stone, there is to be found the principle ‘in solidum’.Footnote ¹ This could be interpreted as an early thought of a community of solidarity. In younger history, ‘freedom, equality, fraternity’ was the battle cry of the French Revolution and in the post-revolutionary nineteenth century, the category of solidarity moves to the centre of theories of social gratitude, as proclaimed for example by Auguste Comte.Footnote ² In solidarism, solidarity even became the yardstick for a sociopolitical reform movement.Footnote ³ In Germany, the social democrats developed in the meantime an extremely differentiated social-oppositional social-democratic club culture, which proved for their leader, Karl Liebknecht, that the working class would not only be able to take power, but also to culturally form society.Footnote ⁴

3.2.2 General Definition of Solidarity

If we look at current definitions of solidarity, the online dictionary for example uses a wide definition, defining solidarity as ‘arising from common responsibilities and interests, as between members of a group or between classes, peoples, etc.’,Footnote ⁵ similar to the definition of the most notable German dictionary Duden, where solidarity is seen as an absolute (social) cohesion with someone based upon the same opinions and aims.Footnote ⁶ Common identity and common interests are thus defined as starting points for a definition of solidarity.Footnote ⁷ This reminds of Durkheim’s ‘mechanical solidarity’ of older, less structured, segmental societiesFootnote ⁸ and might serve as a point of departure, though further elements have to be added. Solidarity implies up to a certain point the abstraction of own interests.Footnote ⁹ An act of solidarity may also be to refrain from doing something to support others or another group. In practising solidarity, a group is acting without being obliged to do so.Footnote ¹⁰ The idea of mutual support is partly also considered a central issue of solidarityFootnote ¹¹ and some authors describe the welfare state as an expression of institutionalized solidarity.Footnote ¹² Several authors emphasize that solidarity, in addition, has to be differentiated from charity,Footnote ¹³ where there are not necessarily common interests or values with the subject of charity. As Hyman holds, moreover, there must be differentiation between ‘solidarity with’ and ‘solidarity against’.Footnote ¹⁴ The previous elaborations refer to ‘solidarity with others’ – the context of a ‘solidarity against’ something or somebody will be elaborated below.

3.2.3 Internal Dimension of Solidarity

Solidarity is also an expression of a social relation, which includes an element of responsibility.Footnote ¹⁵ As Durkheim holds with his ‘organic solidarity’, consensus results from a differentiation of the individual members of the group,Footnote ¹⁶ who are not similar to one another but are dependent on one another (cohesion through dependencies).Footnote ¹⁷ Such concepts might be described as an internal dimension of solidarity. Social relations of that kind are more visible in times of crisis, as was the case in the shutdown periods of the COVID-pandemic in 2020 and 2021.

3.2.4 External Dimension of Solidarity

Beyond the internal, there’s also an external dimension of solidarity, when solidarity is practised in political struggle, being solidary with people (or groups) who stand up and fight for their rights, as some authors emphasizeFootnote ¹⁸ and as is shown impressively by Bertolt Brecht in his song ‘Solidarity’. Solidarity is thus seen as a process that is defined by interactions and collective action.Footnote ¹⁹ As Hyman holds, this might be described as ‘solidarity against’ the oppressor,Footnote ²⁰ which is defined by some authors as transformative solidarity.Footnote ²¹

Sangiovanni furthermore links solidarity with justice, when he defines ‘global or international justice’ as the basis of ‘social solidarity across borders’.Footnote ²² This reminds of the findings of Durkheim, who already considered justice a fundamental element of a production based upon the division of labour.Footnote ²³ Whereas other authors like Nagel believe that social justice ultimately is only possible among those who are subject to a comprehensive system of societal norms backed by coercion,Footnote ²⁴ Sangiovanni opposes this theory with the concept of internationalism,Footnote ²⁵ upon which trade unions build their international practice.Footnote ²⁶ He defines internationalism as the ‘mutual production of collective goods’, which is based upon an element of fairness in global production.Footnote ²⁷ A striking description points out that solidarity is a specific form of social practice, which is born in daily discussion of the collective construction of the social.Footnote ²⁸ Several authors see solidarity linked to the idea of justice.Footnote ²⁹ To counter Nagel, this might be complemented by the idea that solidarity is practised without obligation, as elaborated above and as will be shown by the examples from trade union practice. As will be elaborated below, both the internal and external forms of solidarity are to be detected in the practice of trade unions.

3.2.5 Inclusive and Exclusive Solidarity

Two more differentiations of solidarity are elaborated in literature: inclusive and exclusive solidarity. Researchers describe it as inclusive solidarity, when the group concerned has on the one side a common concern, but the actual interest is not homogeneous, nor is the group in itself homogeneous.Footnote ³⁰ It is an inclusive project insofar as different interests are included. Partly it is emphasized that inclusive solidarity is practised with others outside the own collective,Footnote ³¹ as is the case in international solidarity described by Giovanni. Exclusive solidarity, on the other hand, is practised for the benefit of a particular group,Footnote ³² potentially at the expense of others.Footnote ³³ The group concerned is composed of rather homogeneous interests and emphasizes the identity of the interests of the solidarity actors, Footnote ³⁴ at least insofar as the ‘solidarity between equals’ of Zoll (and Durkheim) is categorized as external solidarity.Footnote ³⁵

3.3 Solidarity in the Practice of Trade Unions

Solidarity has always been an important topic of social partners, nevertheless this applies to a greater extent to the workers’ side. As the weaker party, the support of others is an important element to strengthen trade unions.Footnote ³⁶ Although there might be detected certain elements of solidarity also in employer organizations,Footnote ³⁷ the companies that are members of the employers’ organization ultimately face each other as market competitors. This analysis therefore refers to the concept of solidarity of trade unions in their general work and in collective bargaining and the legal basis for that.

3.3.1 Legal Background

Art. 28 CFR assumes that workers have the right to form their own organizations and guarantees the right to bargain collectively and to make use of the right to strike in defence of the workers’ interests. In Germany, freedom of association and collective bargaining are enshrined in Art. 9.3 of the German Basic Constitutional Law. A central aim of these fundamental rights is the autonomy of the collective bargaining partners for the shaping of laws.Footnote ³⁸ They define themselves, how they want to organize, to run their organization and which values are the basis of their work. Thus freedom is granted, in which the conflicting interests of workers and employers may be carried out by their own responsibility,Footnote ³⁹ which sometimes is also called ‘social self-government’.Footnote ⁴⁰ The concept of solidarity therefore is defined first and foremost by the social partners themselves, or more precisely by the members of the social partners whom they are representing.Footnote ⁴¹ Nevertheless restrictions might exist, as the rules for collective bargaining and for collective action are defined by law, either by statutory law or by jurisdiction,Footnote ⁴² depending on the system of the respective member states. To be acknowledged as trade unions, sometimes linked with the ability to bargain collectively, trade unions have to be representative.Footnote ⁴³

3.3.2 Solidarity in the Work of Trade Unions: Introduction

Solidarity has always been a central value of trade unions,Footnote ⁴⁴ as was already declared 1848 by Stephan Born, co-founder of the General German Workers’ Fraternization (Allgemeine Deutsche Arbeiterverbrüderung): ‘Free competition! Everyone for-himself!’ is opposed here by the principle of ‘solidarity’, ‘the fraternization’.Footnote ⁴⁵ In the (German) Weimar Republic, solidarity was an important value for the working class, which could be characterized by communality and mutuality.Footnote ⁴⁶ Today, trade unions proclaim solidarity as a central value of their self-image,Footnote ⁴⁷ based upon the subjective conviction that only together can something be achieved. This includes the practice of solidarity across borders,Footnote ⁴⁸ as the example of the Accord in Bangladesh after the breakdown of the Rana Plaza factory with the death of more than 1,000 workers impressively showed.Footnote ⁴⁹ Such values are characterized by individual and collective experiences, as well as by social discourses, which is more visible in times of crisis, like in the COVID-19 pandemic. The head of the German Federation of Trade Unions thus declared on the first of May 2020 in his online speech, ‘We’ll get through the corona crisis together only with solidarity, because you are not alone in solidarity’ (‘Nur mit Solidarität stehen wir die Corona-Krise gemeinsam durch, denn solidarisch ist man nicht alleine’).Footnote ⁵⁰ The crisis indeed strongly visualizes importance, values and the role of trade unions in society, as collectives create security in insecure times.Footnote ⁵¹

3.3.3 Inclusive and Exclusive Solidarity of Trade Unions

Solidarity in trade unions is practised collectivelyFootnote ⁵² and trade unions may practise at the same time inclusive and exclusive solidarity. While establishing inclusive solidarity among their membership, they are to a certain extent naturally exclusive organizations,Footnote ⁵³ representing primarily the interests of their members. The question of which sector a trade union is open to workers is defined by the statutes of the organization, which thus define implicitly the boundaries of solidarity.Footnote ⁵⁴ Nevertheless a closer look at the different types of trade union is necessary. In Germany, industrial unions Footnote ⁵⁵ organize all kinds of different workers in a sector and due to their heterogenous membership, face tremendous problems with the unification of the differentiating group-specific interests.Footnote ⁵⁶ Their basic organizational efforts may be categorized as inclusive solidarity. Occupational trade unions, in contrast, organize only homogenous, specialized groups of workers of the same kind.Footnote ⁵⁷ As these trade unions exclusively organize specific professional or status groups,Footnote ⁵⁸ they don’t have to show consideration for the interests of other groups of workers and therefore practise solidarity exclusively for their clientele. Their daily work thus may be categorized as exclusive solidarity.Footnote ⁵⁹

Industrial trade unions, however, which are based upon the concept of inclusive solidarity, may practise exclusive solidarity under certain circumstances. In the economic crisis of 2008/2009 for example, German trade unions ensured that only few workers were dismissed. But this only applies to the regular workforce – the use of agency work was terminatedFootnote ⁶⁰ and fixed-term employment not prolonged. With this policy, trade unions thus interacted on behalf of their members, which are mostly composed of the regular workforce – and they acted on the back of the non-members. Another example of exclusive solidarity might occur in both types of trade unions, as well in industrial unions, as in occupational unions. As research has shown, racist tendencies may also be detected among the members of trade unions, of which a good many in Germany strongly support the right-wing racist party Alternative für Deutschland (AfD).Footnote ⁶¹ Even members of an inclusive industrial union thus may exclude minorities when they go for ‘Germans first’, as well as members of occupational unions.

Furthermore, developments in the working world have to be borne in mind, which makes it more difficult for trade unions to unite people on the basis of solidarity as a central value. In the last century, a soft form of solidarity was somehow the product of socialization in the factory. As Durkheim held, although not being homogenous, due to mutual interdependencies in the working process based upon the division of labour, the workforce acknowledged colleagues and there might be described a solidary community as a collective, although there was always also rivalry among proletarians.Footnote ⁶² Nevertheless, this consciousness was an ideal starting point for the work of trade unions. Currently the end of Fordism with the end of standardized mass production and the change towards more flexible and decentralized forms of production has been sufficiently described.Footnote ⁶³ Industrial workers, in addition, are not the majority of the workforce anymore.Footnote ⁶⁴ Most people work in offices, in laboratories or practices and are socialized in the office, not in the factory. Employees, though, tend to be more sceptical of the idea of a collective than workers and separation is growing.Footnote ⁶⁵ This is even more the case with workers in part-time work, freelancers, agency workers or crowd workers, which impedes the work of trade unions. As a consequence, specific trade unions and organizations for precarious workers were founded in some countries, like SEWA in India,Footnote ⁶⁶ GMB-union for Uber-drivers in GBFootnote ⁶⁷ or organizations for domestic workers.Footnote ⁶⁸ But also industry-wide unions seem to have become more open for ‘non-traditional’ workers. In Germany the trade union Ver.di from the service sector has been open for freelancers since its foundation in 2001Footnote ⁶⁹ and the IG-Metall opened up since a change in its statutes some years ago.Footnote ⁷⁰ The IG-Metall, in addition, was the first union in Germany that made an effort to support crowd workers,Footnote ⁷¹ with other unions following.Footnote ⁷² As research indicates, trade unions have become more open towards precarious workers and in some countries form specific structures to represent precarious workers,Footnote ⁷³ as the German example of IG-Metall and Ver.di shows. This may be described as a stronger approach of inclusive solidarity. Furthermore, alliances of trade unions with NGOs and public agencies can be detected.Footnote ⁷⁴ Another factor for trade unions is the shift from sectorial collective bargaining towards company bargaining, which leads to a higher risk of ‘company-egoism’ with competition between enterprises, which might easily lead towards a rather exclusive solidarity, focused on the members of the own collective, the workforce of a specific company.Footnote ⁷⁵ Therefore, a closer look at the specifics of solidarity in the current work of trade unions and at the legal background is necessary.

3.3.4 Solidarity among the Members of the Trade Union

3.3.4.1 Solidarity concerning Membership Fees

Trade unions act on behalf of their members in order to protect workers’ interests and the activity of a trade union therefore is defined by the members.Footnote ⁷⁶ There might be given several examples of how solidarity is practised among these members: as a general principle, members pay a certain percentage of their income as membership fee,Footnote ⁷⁷ but specific groups with very little income do pay less. Students, people who receive the basic income by the state and those who provide voluntary service pay the minimum contribution, which is (in Germany) between €2,05 and €2,50. Other groups that for example receive pensions, unemployment or parental benefit, do pay only 0.5 per cent of their gross income to the union. The economically weakest parts of the membership are thus supported by a lower membership fee – based upon the idea that every single member potentially might get into an economic situation that requires an indirect form of support. Elements of this idea are to be found in all trade unions and can be categorized as inclusive solidarity. Such forms of solidarity within trade unions are based upon the idea of mutual support and have an ethical normative side, as an instrumental side, which distinguishes it from charity. Furthermore, there is no force to make use of such elements of solidarity; the members autonomously choose such a practice when defining the statutes of the organization.

3.3.4.2 Solidarity within the Process of Collective Bargaining

Another example might be given from collective bargaining negotiations of (representative) trade unions,Footnote ⁷⁸ where sometimes the lowest wage groups receive a specific amount of pay rise, which is higher than the percentage rise for the members of all other groups,Footnote ⁷⁹ as was the case for healthcare workers in autumn 2020 in Germany due to the COVID pandemic. Nursing stuff in addition received a pay rise between 8.7 and 10 per cent, whereas the pay rise of other groups was only 3.2 per cent.Footnote ⁸⁰

The whole group of workers that are subject to the specific collective bargaining agreement (CBA) has on the one side a common interest, the wage increase, but the actual interest is not homogeneous. Qualified workers in general might receive a higher wage rise within an isolated struggle, but support within the process of collective bargaining in industrial unions the less assertive unqualified workers. The balance inside the trade union is always unstable and has to be negotiated before and within the negotiations with the employer side. Such an interrelation may be characterized as solidarity and can be described as inclusive solidarity.Footnote ⁸¹ A practice of solidarity that is not exclusive tries to expand the distributive discretion and will receive more support if a fair distribution is intended.Footnote ⁸² As already elaborated, the basis of collective bargaining is the autonomy of the bargaining partners. The demands in an industrial dispute therefore are autonomously defined by the social partners themselves, and they define the level of solidarity in the bargaining committees of the respective union, where the demands for the negotiations are specified, although in some countries legal limitations might exist.Footnote ⁸³

3.3.4.3 Solidarity through Strike Activities

Another similar example may be detected in the strike activity of industrial trade unions, where often some workers in specific positions are chosen to strike in the industrial conflict, on behalf of themselves, but also on behalf of other workers of the same union within the respective bargaining district, who belong to a different (and weaker) status group. The workers whose work stoppage hits the employer side most effectively are chosen for strike activity of the whole section, for example, garbage collectors or train/bus drivers. This counts at least for industrial unions, which organize all the workers of a company in a specific sector. This is another example of inclusive solidarity. If occupational trade unions, which organize only a specific occupational group, go on strike, they only strike for their own interest – and thus practise an exclusive form of solidarity. Based upon the strike provisions in the different EU member states, the form of solidarity that is practised in a strike could be analysed for the trade union organization (see above) or for the individual striking worker as well, if the strike rule guarantees the right to strike for trade union organizations. This is the case in Belgium, Italy, France and Spain, where the right to strike is granted also to individuals, whereas in Germany, Greece, Poland, the Czech Republic, Slovakia and Sweden only strikes are lawful that were called by trade union organizations.Footnote ⁸⁴

3.3.4.4 Solidarity Strikes

Solidarity strikes are the clearest practice of the inclusive solidarity of trade unions (and trade union members), as the workers are not striking in their own interests or for their own collective bargaining agreement (CBA) , but supporting others in their primary industrial action.Footnote ⁸⁵ Solidarity strikes are practised in solidarity with the interests of others, often by workers of the same sector, but also from another section of the same or from another company or of the same trade union, or of another sector or even practised by members of other trade unions, partly even in another country. The further away the solidarity strikers are from the initial strikers, the less homogenous the group of striking workers is, which was elaborated as a sign of inclusive solidarity. Nevertheless, if solidarity strikes are not admissible in certain countries (as elaborated below), this form of solidarity is not an option for the respective trade unions.

3.3.4.4.1 Practical Example

A classical example of inclusive solidarity comes from the International Transportworkers Federation (ITF), which has used industrial action in the form of boycott activity Footnote ⁸⁶ by ITF-affiliated unions to support pay disputes for many years. There is a variety of possible scenarios. The most common scenario within which ITF affiliates resort to boycott action is the one where the ITF requests the owner of a ship sailing under a flag of convenienceFootnote ⁸⁷ to conclude an ITF-CBA. If the shipowner (or the operating company) fails to comply with this request, the competent ITF union will call for a boycott as soon as the ship makes for a port of which the dockworkers are organized in an ITF-affiliated union. The ITF’s common practice in such situations is to call on the dockworkers to boycott loading and unloading operations for such a ship, in order to compel the shipowner to conclude an ITF-CBA. Another option would be to have the ITF-affiliated union of another country that is involved in a collective bargaining dispute and call on its foreign sister unions to initiate a boycott in support of its industrial action. Nevertheless, such action is not lawful in all member states and thus may be practised only in some countries.

3.3.4.4.2 Legal Questions

Most constitutions of EU member states guarantee the right to strike or it is granted by either ordinary statutory law or by jurisdiction (s.a.). Solidarity strikes, however, are not always considered lawful. Only in some EU member states are solidarity strikes lawful if they support a lawful strike (Austria,Footnote ⁸⁸ Bulgaria,Footnote ⁸⁹ Cyprus,Footnote ⁹⁰ Denmark,Footnote ⁹¹ Iceland,Footnote ⁹² Italy,Footnote ⁹³ Malta,Footnote ⁹⁴ Portugal,Footnote ⁹⁵ Sweden Footnote ⁹⁶) or lawful even if the primary strike is unlawful (Belgium).Footnote ⁹⁷

In other legal orders solidarity strikes are only legally admissible if there’s some sort of link to the main labour conflict, so that the employer may influence the negotiations and thus the ending of the strike activity (Czech Republic,Footnote ⁹⁸ France,Footnote ⁹⁹ Greece,Footnote ¹⁰⁰ Spain Footnote ¹⁰¹ and SlovakiaFootnote ¹⁰²). Sometimes solidarity strikes are lawful in principle, although subject to specific rules (for example in Croatia,Footnote ¹⁰³ Estonia,Footnote ¹⁰⁴ Hungary,Footnote ¹⁰⁵ Finland,Footnote ¹⁰⁶ IrelandFootnote ¹⁰⁷ and RomaniaFootnote ¹⁰⁸) or considered lawful only under specific (restricted) conditions, as is the case in Poland.Footnote ¹⁰⁹ In other countries, like Slovenia, it is still disputed whether solidarity strikes are admissible.Footnote ¹¹⁰ Solidarity strikes are classified as illegal in Latvia, if the dispute does not concern a general agreement (sectoral-level CBA),Footnote ¹¹¹ whereas in Lithuania,Footnote ¹¹² LuxembourgFootnote ¹¹³ and the Netherlands,Footnote ¹¹⁴ solidarity strikes are considered unlawful.

Although the right to strike falls under national law and as is well known, Art. 153(5) TFEU bans the EU of legal acts in this area, EU law still has an impact on national law. The CJEU has taken decisions in the ‘famous’ strike cases of Viking and Laval, where the right to strike was acknowledged as a fundamental right and balanced with the fundamental freedoms (with economic rights prevailing, as is well known).Footnote ¹¹⁵ Also Art. 28 EU-CFR guarantees the right ‘to take collective action’, and due to Art. 52(2) CFR, the rights of the Charter (which correspond to rights of the ECHR) have to be interpreted in line with those of the Convention. According to the explanatory notes on Art. 52 of the Charter, ‘the level of protection afforded by the Charter may never be lower than that guaranteed by the ECHR’. The meaning and scope of the CFR therefore are also defined by the jurisprudence of the European Court of Human Rights (ECtHR),Footnote ¹¹⁶ which was confirmed by CJEU decisions.Footnote ¹¹⁷ Art. 11(1) of the ECHR does not explicitly mention the right to strike, nevertheless the famous decision Demir & BaykaraFootnote ¹¹⁸ marked a change in the interpretation of freedom of association of the Court and one year later the ECtHR also saw also the right to strike encompassed by Art. 11 (1) ECHR.Footnote ¹¹⁹ Limitations to this right are only admissible if there’s a legal basis and interference is only justified if ‘necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others’ (Art. 11(2) ECHR). Although this test corresponds at first sight to the proportionality test used by the CJEU, the ECtHR makes use of a different standard of judicial review and interprets the right to strike much wider than the CJEU.Footnote ¹²⁰ The ECtHR has reconfirmed with further decisions that the right to strike falls within Art. 11 of the ECHRFootnote ¹²¹ and in the RMT decision the court has generally acknowledged the right to take solidarity action as part of Art. 11 ECHR, as well.Footnote ¹²² In this case nevertheless, the ECtHR distinguished between direct strikes and so-called ‘secondary’ strike action, where it has acknowledged a wide margin of appreciation for the state and accepted the argument of the British government that excessive economic damage would result from legal secondary strike action. This formal distinction between direct strike activity of the trade union involved and indirect solidarity activities showed the limitations of the findings of the court, especially concerning solidarity strikes.Footnote ¹²³

As the right to strike is also guaranteed explicitly in Art. 6(4) of the European Social Charter (ESC), both in the 1961 version and in the revised ESC (of 1996), the findings of the European Committee of Social RightsFootnote ¹²⁴ might also influence the interpretation of the right to strike in the member states, although it is disputed to what extend the findings of the committee have to be considered by national courts.Footnote ¹²⁵ The right to strike under the ESC encompasses the right to strike in solidarity, as well.Footnote ¹²⁶ Moreover, the Committee acknowledges the right to strike as fundamental and important and emphasizes, that ‘the facilitation of free cross-border movement of services … cannot be treated, from the point of view of the system of values, principles and fundamental rights embodied in the Charter, as having a greater a priori value than core labour rights, including the right to make use of collective action’.Footnote ¹²⁷ Nevertheless, member states (of the Council of Europe) are not necessarily bound by Art. 6(4) ESC, as the Charter allows to choose six of nine articles of Part II (Art. 1, 5, 6, 7, 12, 13, 16, 19 and 20, see part III, Art. A, 2 (b) ESC). Moreover, the possibilities in the supervisory system of the ESC in case of violations are limitedFootnote ¹²⁸ and might be described as naming and shaming. But still the influence of the ESC should not be underestimated, as the German example shows. The change in German jurisdiction in 2007, with which solidarity strikes were (under certain conditions) acknowledged, was based upon Art. 6(4) ESC.Footnote ¹²⁹

3.3.5 Elements of Direct Democracy in the Work of Trade Unions

Direct democracy means that relevant decisions are taken by the people effected.Footnote ¹³⁰ Although the basic structure of trade unions is based upon the idea of representative democracy,Footnote ¹³¹ several elements of direct democracy may be found as well in the practice of the organizations. Demands for collective bargaining rounds, for example, are elaborated and discussed in bargaining commissions, composed of delegates of the members. Even though guidelines for the claims of the organization are given by the board of the union, these are in most trade unions only general guidelines, supplemented by info-material of the collective bargaining departments. Central questions are defined by the members, or rather by their delegates, who also have to be consulted before the collective agreement is signed. Elements of direct democracy are thus mixed with those of representative democracy.

Although in most trade unions a strike has to be finally approved by the board, strike-balloting of the members is necessary before a strike can start, and as a rule 75 per cent of the members or more have to vote in favour. Moreover, the statutes of most trade unions provide for a second ballot, which has to be executed to receive an approval for the result of the negotiations by the members, and mostly about 75 per cent (or more) are as well necessary to reject the result.

3.4 (European) Works Councils

3.4.1 Solidarity in the Practice of (European) Works Councils

Another actor that might practise solidarity in the working world is the European Works Council (EWC), and in a few countries works councils operate at the national level, as well. EWCs are Europe-wide bodies of workers’ representation in a company or group of companies with delegates of workers representatives of each member state, sometimes even with further delegates from outside Europe.Footnote ¹³² As EWCs are set up for the purpose of information and consultation, their defined function is to receive information regarding central management (with further consultation). Some EWCs nevertheless have developed further and created transnational structures for cooperation. It could be described as an act of inclusive solidarity when EWC delegates from the home country share their usually good resources, as well as their frequently preferential access to information, with representatives from other countriesFootnote ¹³³ or create network structures across Europe. Some EWCs have even developed into bodies that actively negotiate agreements about topics like non-discrimination, training, data protection or even restructuring (beyond the founding agreements)Footnote ¹³⁴ and actively practise solidarity across Europe.Footnote ¹³⁵ Haipeter and Banyuls examined the work of EWCs in the European subsidiaries of General Motors and concluded that solidarity practised throughout Europe would be comprised of refraining from activities, which would be useful for one plant, but could harm others. Representatives of other plants in turn behave in the same way and solidarity is created in some sort of negotiation process. Actors with whom central management wants to compete throughout Europe, by refraining to do so, finally promote their interests.Footnote ¹³⁶

In Germany and Austria the main body of workers’ representation at the workplace level is the works council (WC). WCs are elected by the employees and formally independent of trade unions.Footnote ¹³⁷ As WCs represent the whole workforce, which often will be composed of different kinds of workers, structurally elements of inclusive solidarity are part of their work. On the other hand, as research has shown, WCs rather represent the typical permanent (male) workforce,Footnote ¹³⁸ with minorities or atypical, precarious workers rarely elected into the body. And what is more, the legal order does not provide WCs with the possibility to solve the main problems of fixed-term contracts or agency workers.Footnote ¹³⁹ Elements of exclusive solidarity thus are structurally also part of the work of WCs, which might differ, based upon the concrete work of the workers’ representatives.

3.4.2 Elements of Direct Democracy in the Work of (European) Works Councils

In Germany, WCs are elected by the workforce every four years (§13.1 BetrVG) and represent the workforce of the company, which may rather be described as a form of representative democracy. Inquiries of the workforce are only voluntary and rarely practised, although ‘good’ works councils try to get to know the will of the workers and to integrate them into their work. In case of severe misconduct, one quarter of the workers are entitled to vote and may apply at the labour court for the dismissal of the WC, or of individual members (§23.1 BetrVG),Footnote ¹⁴⁰ which could be seen as an element of action besides and before the next election. But this is rarely practised and hardly ever by the workforce, but rather by the employer or by the respective trade union. There are thus far fewer elements of direct democracy in the operating principle of German works councils. This counts even more for EWCs, as in most EU member states they are nominated by the workers’ representatives and only in cases where there are no such representatives, the workforce is involved directly.Footnote ¹⁴¹

3.5 Conclusion

As has been elaborated, inclusive as well as exclusive solidarity may be detected in the work of trade unions, EWCs and WCs and is partly characterized by their work. Therefore, the architecture of collective labour law, both in Europe as in Germany, contains solidarity as a central element of its structure. It has to be questioned whether this is reflected enough in current EU law interpretation.

Footnotes

¹ Which could be translated, ‘all for one and one for all’.

² Comte, Reference Comte1891, p. 215.

³ Bude, Reference Bude2019, p. 29.

⁴ Liebknecht, Reference Liebknecht and Liebknecht1871, p. 99.

⁵ Online dictionary, www.dictionary.com/browse/solidarity (13.4.2022).

⁶ ‘Unbedingtes Zusammenhalten mit jemandem aufgrund gleicher Anschauungen und Ziele’, see www.duden.de/rechtschreibung/Solidaritaet (16.1.2020).

⁷ Hyman, Reference Hyman2002, p. 2; Lessenich, Reder and Süß, Reference Lessenich, Reder and Süß2020, p. 319 (322).

⁸ Durkheim, Reference Durkheim1988, pp. 200ff.

⁹ Klindworth and Schröder, Reference Klindworth and Schröder2010, p. 7.

¹⁰ Bude, Reference Bude2019, p. 11; Ludwig, Reference Ludwig2019, p. 43.

¹¹ Bertram, Reference Bertram, Mückenberger and Timpf2007, p. 215; Bude, Reference Bude2019, p. 32; Hyman, Reference Hyman2002, p. 2; Kock and Kutzner, Reference Kock and Kutzner2020, p. 327; Lessenich, Reder and Süß, Reference Lessenich, Reder and Süß2020, p. 319 (323); Ludwig, Reference Ludwig2019, p. 43; Wersig et al., Reference Wersig, Künzel, Berghahn, Ursula and Beate2006, p. 314.

¹² Bude, Reference Bude2019, p. 45.

¹³ Bayertz, Reference Bayertz1998, p. 49; Bude, Reference Bude2019, p. 20; Hoffmann, Reference Hoffmann, Joachim, Alex and Michael2004, p. 38; Lange and Thiersch, Reference Lange, Thiersch and Böllert2006, pp. 214f.; Zoll, Reference Zoll2000, p. 12; Lessenich, Reder and Süß, Reference Lessenich, Reder and Süß2020, p. 319 (321).

¹⁴ Hyman, Reference Hyman2002, p. 2.

¹⁵ Bude, Reference Bude2019, p. 21; Lessenich, Reder and Süß, Reference Lessenich, Reder and Süß2020, p. 319 (322).

¹⁶ In Durkheim’s work, he relies upon society.

¹⁷ Durkheim, Reference Durkheim1988, pp. 428ff.; for a more recent take see Hondrich and Koch-Arzberger, Reference Hondrich and Koch-Arzberger1992, p. 13.

¹⁸ Bayertz, Reference Bayertz1998, p. 49; similarly, see Sangiovanni, Reference Sangiovanni2013, pp. 118ff. and Lessenich, Reder and Süß, Reference Lessenich, Reder and Süß2020, p. 319 (322).

¹⁹ Ludwig, Reference Ludwig2019, p. 44; similarly: Lohmeyer et al., Reference Lohmeyer, Schüßler and Helfen2018, p. 400 (402); Lessenich, Reder and Süß, Reference Lessenich, Reder and Süß2020, p. 318.

²⁰ Hyman, Reference Hyman2002, p. 2.

²¹ Lessenich, Reder and Süß, Reference Lessenich, Reder and Süß2020, p. 319 (323f.).

²² Sangiovanni, Reference Sangiovanni2013, pp. 118ff.

²³ Durkheim, Reference Durkheim1988, pp. 421ff.

²⁴ Nagel, Reference Nagel2005, pp. 113ff.; similarly: Schäfer, Reference Schäfer2006, p. 355.

²⁵ Sangiovanni, Reference Sangiovanni2013, p. 119.

²⁶ Hoffmann, Reference Hoffmann, Joachim, Alex and Michael2004, pp. 34ff.

²⁷ Sangiovanni, Reference Sangiovanni2013, p. 120.

²⁸ Lessenich, Reder and Süß, Reference Lessenich, Reder and Süß2020, p. 324.

²⁹ Bude, Reference Bude2019, p. 140; Zoll, Reference Zoll2000, p. 105.

³⁰ Zeuner, Reference Zeuner, Widerstand, Joachim, Alex and Michael2004, pp. 325f.

³¹ Bude, Reference Bude2019, p. 144; Zeuner, Reference Zeuner, Widerstand, Joachim, Alex and Michael2004, p. 332.

³² Bude, Reference Bude2019, p. 144; Lessenich, Reder and Süß, Reference Lessenich, Reder and Süß2020, p. 319 (322).

³³ Lessenich, Reder and Süß, Reference Lessenich, Reder and Süß2020, p. 319 (322).

³⁴ Zeuner, Reference Zeuner, Widerstand, Joachim, Alex and Michael2004, pp. 325f.

³⁵ Zeuner, Reference Zeuner, Widerstand, Joachim, Alex and Michael2004, p. 332.

³⁶ Lohmeyer et al., Reference Lohmeyer, Schüßler and Helfen2018, p. 401 (403).

³⁷ Höpner, Reference Höpner2007, p. 329 f; Keller, Reference Keller2008, pp. 368f., 377.

³⁸ Linsenmaier, 2020, Art. 9 GG, Rn 51.

³⁹ BVerfG (Constitutional Court) of 2.3.1993 – 1 BvR 1213/85, BVerfGE 88, 103 (114).

⁴⁰ Scholz, Art. 9 GG, Rn 160.

⁴¹ On the representativeness of trade unions: Mundlack, Reference Mundlack2020b.

⁴² The right to strike is mostly guranteed in the constitution of EU member states, with the exception of Austria, Belgium, Luxembourg, Malta, the Netherlands, Ireland and the UK. In Germany and Finland the right derives from the freedom of association: Warneck, Reference Warneck2007, p. 7; Waas, Reference Waas and Waas2014, pp. 5ff.

⁴³ Mundlack, Reference Mundlack2020a, pp. 86ff.; Mundlack, Reference Mundlack2020b.

⁴⁴ Hoffmann, Reference Hoffmann, Joachim, Alex and Michael2004, pp. 34ff.

⁴⁵ Born, in the journal ‘Die Verbrüderung’: ‘Freie Konkurrenz! Jeder für sich!’, wird hier gegenübergestellt dem Prinzip der ‘Solidarität’ der ‘Verbrüderung’! Jeder für alle.

⁴⁶ Bude, Reference Bude2019, p. 32.

⁴⁷ See explanations on webpages of (the most important) German trade unions: IG-Metall: www.igmetall-nrw.de/mitglied-werden/solidaritaet-ist-kein-prinzip-von-gestern/?L=0; Ver.di: www.verdi.de/ueber-uns/idee-tradition and the DGB: www.dgb.de/themen/++co++b0c8af80-c5cc-11ea-ad59-001a4a160123 (all 13.4.2022).

⁴⁸ For further information, see Lohmeyer et al., Reference Lohmeyer, Schüßler and Helfen2018, pp. 400ff.; Zimmer, 2019, pp. 167ff., both with further references.

⁴⁹ Smith, Reference Smith, Lucia and Thomas2014, p. 51 (56); Zimmer, Reference Zimmer2016.

⁵⁰ Hoffmann: www.vorwaerts.de/artikel/dgb-chef-hoffmann-nur-solidaritaet-stehen-corona-krise-gemeinsam (13.4.22).

⁵¹ Lindemann, Reference Lindemann2020, p. 374 (376); Steg, Reference Steg2020, p. 60.

⁵² Lindemann, Reference Lindemann2020, p. 374.

⁵³ Ludwig, The politics of Solidarity, p. 43.

⁵⁴ Hyman, Reference Hyman2001, p. 170; Zeuner, Reference Zeuner, Widerstand, Joachim, Alex and Michael2004, p. 334.

⁵⁵ The German industrial unions organize all employees within their organizing territory regardless of status, occupational category or profession, qualification, political conception or religion; see Dribbusch and Birke, Reference Dribbusch and Birke2019, p. 7; Keller, Reference Keller2008, p. 365.

⁵⁶ Keller, Reference Keller2016, p. 6; similarly coincerning the difficulties, Zeuner, Reference Zeuner, Widerstand, Joachim, Alex and Michael2004, p. 334.

⁵⁷ E.g. in Germany, the Marbuger Bund organizes only doctors, the Gewerkschaft der Flugsicherung only air traffic controllers, etc. For further information, see: Dribbusch and Birke, Reference Dribbusch and Birke2019, p. 7 or Keller, Reference Keller2016, pp. 6f.

⁵⁸ Dribbusch and Birke, Reference Dribbusch and Birke2019, p. 9.

⁵⁹ Keller, Reference Keller2008, pp. 368f.

⁶⁰ Dribbusch and Birke, Reference Dribbusch and Birke2019, p. 22.

⁶¹ Dribbusch and Birke, Reference Dribbusch and Birke2019, p. 4.

⁶² Bude, Reference Bude2019, pp. 62f.

⁶³ See instead of many: Fichter and Zeuner Reference Fichter and Zeuner2002, p. 13 (15), with further references.

⁶⁴ Hyman, Reference Hyman2002, p. 3.

⁶⁵ Bude, Reference Bude2019, pp. 64ff.; Pulignano et al., Reference Pulignano, Ortíz Gervasi and de Franceschi2016, p. 39 (40).

⁶⁶ For further information see www.sewa.org (10.3.2021).

⁶⁷ For further information see www.gmb.org.uk (10.3.2022).

⁶⁸ For further information see www.wiego.org/domestic-workers-organizing (10.3.2022).

⁶⁹ For further information see https://selbststaendige.verdi.de/ (10.3.2022).

⁷⁰ For further information see www.igmetall.de/service/leistungen/vorteile-einer-mitgliedschaft-fuer-solo-selbststaendige (10.3.2022).

⁷¹ For further information see http://faircrowd.work/de/ (10.3.2022).

⁷² For further information see www.ich-bin-mehr-wert.de/support/cloudworking/ (10.3.2022).

⁷³ Pulignano et al., Reference Pulignano, Ortíz Gervasi and de Franceschi2016, p. 39 (41ff.); similarly: Durazzi, Reference Durazzi2017, p. 265 (271ff.).

⁷⁴ Doellgast, Lillie and Pulignano, Reference Doellgast, Lillie, Pulignano, Doellgast, Lillie and Pulignano2018, p. 1 (8).

⁷⁵ Kock and Kutzner, Reference Kock and Kutzner2020, p. 327 (331).

⁷⁶ Zimmer, Reference Zimmer2016, p. 18.

⁷⁷ In Germany this is 1 per cent of the regular gross income.

⁷⁸ The trade union has to be representative, see Mundlack, Reference Mundlack2020a, pp. 86ff.; Mundlack, Reference Mundlack2020b.

⁷⁹ Further examples are to be found in Wirth, Reference Wirth2021, pp. 1f.

⁸⁰ See trade union Ver.di: https://gesundheit-soziales.verdi.de/tarifbereiche/oeffentlicher-dienst/++co++9407eb6a-16b5-11eb-8249-001a4a16012a (9.3.2022).

⁸¹ Keller, Reference Keller2008, pp. 368f.

⁸² Kock and Kutzner, Reference Kock and Kutzner2020, p. 327 (332).

⁸³ In Germany restrictions for CB are discussed (controversely) concerning economic decisions and corporate policy. For further information, see Däubler, Reference Däubler2016, pp. 27ff.; Däubler, Reference Däubler2012.

⁸⁴ Warneck, Reference Warneck2007, p. 8.

⁸⁵ Linsenmaier, Reference Linsenmaier2022, Art. 9 GG, para. 120, 278; Zimmer, Reference Zimmer2018, p. 508 (510).

⁸⁶ Such boycott activity of dockers may be characerized as solidarity action (strike); see Zimmer, Reference Zimmer2018, p. 508 (510f.).

⁸⁷ Concerning the FOC-campaign of the ITF, see www.itfseafarers.org/en/focs/about-the-foc-campaign (29.03.2022).

⁸⁸ In Austria, solidariry strikes are not explictly regulated, and therefore considered lawful: Burger, Reference Burger and Waas2014, p. 121 (126).

⁸⁹ Warneck, Reference Warneck2007, p. 18.

⁹⁰ Footnote Ibid., p. 21.

⁹¹ Footnote Ibid., p. 25.

⁹² Warneck, Reference Warneck2007, p. 38.

⁹³ Pascucci, Reference Pascucci and Waas2014, p. 331 (341).

⁹⁴ Warneck, Reference Warneck2007, p. 50.

⁹⁵ Warneck, Reference Warneck2007, p. 58.

⁹⁶ Malmberg and Johansson, Reference Malmberg, Johansson and Waas2014, p. 525 (526).

⁹⁷ Warneck, Reference Warneck2007, p. 17.

⁹⁸ Section 16 (3) and 20 (e) Collective Bargaining Act; Hurka, The right to strike: Czech Republic, p. 169 (173); Waas, The right to strike, p. 50; Warneck p. 22.

⁹⁹ Kessler, Reference Kessler and Waas2014, p. 207 (224f.).

¹⁰⁰ Art. 19(1) of Law No. 1264/1982; Bakirtzi, Reference Bakirtzi and Waas2014, p. 259 (276).

¹⁰¹ Solidarity strikes are admissable, if the professional interests of the strikers are somehow effected: Guastavino, Reference Guastavino and Waas2014, p. 509 (517).

¹⁰² Warneck, Reference Warneck2007, p. 64.

¹⁰³ Warneck, Reference Warneck2007, p. 20.

¹⁰⁴ Art. 18(2), Collective Labour Dispute Resolution Act; Warneck, Reference Warneck2007, p. 26.

¹⁰⁵ Solidarity strikes are the only strikes that have to be organized by a trade union: Kajtár and Kun, Reference Kajtár, Kun and Waas2014, p. 285 (294); Waas, Reference Waas and Waas2014, p. 51.

¹⁰⁶ Lamminen, Reference Lamminen and Waas2014, p. 193 (195).

¹⁰⁷ Kerr, Reference Kerr and Waas2014, p. 303 (310); Warneck, Reference Warneck2007, p. 40.

¹⁰⁸ Warneck, Reference Warneck2007, p. 60.

¹⁰⁹ Grzebyk, Reference Grzebyk and Waas2014, p. 427 (440f.)

¹¹⁰ Končar, Reference Končar and Waas2014, p. 467 (472f.); Waas, Reference Waas and Waas2014, p. 51.

¹¹¹ Such sectoral agreements are rare; ETUI: www.etui.org/covid-social-impact/latvia/strikes-in-latvia-background-summary (30.03.2022).

¹¹² Petrylaité, Reference Petrylaité and Waas2014, p. 369 (379); Warneck, Reference Warneck2007, p. 46.

¹¹³ Warneck, Reference Warneck2007, p. 48.

¹¹⁴ Houwerzijl and Roozendaal, Reference Houwerzijl, Roozendaal and Waas2014, p. 413 (422); Warneck, Reference Warneck2007, p. 50.

¹¹⁵ CJEU, C-438/05 Viking (2007), ECR I-10779-10840; CJEU, C-341/05 Laval (2007), ECR I-11767-118904. The court was heavily criticized for the proportionality test of the decision.

¹¹⁶ Zimmer, Reference Zimmer, Blacket and Trebilcock2015, p. 194 (198).

¹¹⁷ See explanations of C-279/09 (DEB Deutsche Energie- und Beratungsgesellschaft, Footnote n 50), para. 35 and C-400/10 (PPU McB, Footnote n 36), para. 53.

¹¹⁸ ECtHR 12.11.2008, no. 34503/97 (Demir and Baykara).

¹¹⁹ ECtHR 21.04.2009, no. 68959/01 (Enerji Yapi Yol Sen).

¹²⁰ For further information, see Vogt et al., Reference Vogt, Bellace, Compa, Ewing, Lord Hendy, Lörcher and Novitz2020, pp. 87ff.; Zimmer, Reference Zimmer, Blacket and Trebilcock2015, p. 194 (199ff.).

¹²¹ ECtHR 27.11.2014, no. 36701/09 (Hrvatski liječnički sindikat/Croatia), para. 49.

¹²² ECtHR 8.4.2014, no. 31045/10 (RMT/UK), para. 77.

¹²³ Lörcher, Reference Lörcher2014; Vogt et al., Reference Vogt, Bellace, Compa, Ewing, Lord Hendy, Lörcher and Novitz2020, p. 194 (203f.).

¹²⁴ ECSR, Digest of the Case Law of the European Committee of Social Rights, 2018, Art. 6(4), pp. 101ff.

¹²⁵ Schlachter, Reference Schlachter, Schlachter and Ulber2019, para. 507ff.; Schubert, Arbeitsvölkerrecht, Reference Schubert2017, p. 98.

¹²⁶ Conclusions XX-3 (2014), United Kingdom.

¹²⁷ ECSR, Digest of the Case Law of the European Committee of Social Rights, 2018, Art. 6(4), p. 104.

¹²⁸ Schlachter, Reference Schlachter, Schlachter and Ulber2019, §6 Europarat, para. 507.

¹²⁹ BAG 19.6.2007 – 1 ABR 396/06, NZA 2007, 1055; Beer, Reference Beer, Schlachter and Ulber2019, §13, para. 47.

¹³⁰ See: BP, Das Politiklexikon: Direkte Demokratie, online: www.bpb.de/nachschlagen/lexika/politiklexikon/17361/direkte-demokratie (28.3.2022).

¹³¹ In a representative democracy, the important decisions are taken by the parliament, which is elected by the people, see: BP, Das Politiklexikon: Repräsentative Demokratie, online: www.bpb.de/nachschlagen/lexika/politiklexikon/18137/repraesentative-demokratie (28.13.2022).

¹³² EWCs may be founded, if the company/group has at least 1,000 workers in one EU member state and a minimum of 150 workers in two members states.

¹³³ Platzer and Rüb, Reference Platzer and Rüb1999, p. 393 (403); Zimmer, Reference Zimmer2013, p. 312 (316).

¹³⁴ For further information see: Zimmer, Reference Zimmer2013, p. 312 (317ff.).

¹³⁵ Zimmer, Reference Zimmer2003, pp. 620ff.

¹³⁶ Haipeter and Banyuls, Reference Haipeter and Banyuls2007, pp. 393f.

¹³⁷ Dribbusch and Birke, Reference Dribbusch and Birke2019, p. 6.

¹³⁸ Däubler, Reference Däubler2019, pp. 1601ff.

¹³⁹ Däubler, Reference Däubler2019, p. 1601 (1602ff.).

¹⁴⁰ This dismissal would be a dismissal of the function; the individual works contract of the person remains in force.

¹⁴¹ Art. 5.2a directive 2009/38/EG leaves it to the member states to choose whether the delegates to the EWC are nominated or voted for by the workforce.

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