Work: Right to strike: “The problem is the power imbalance”

You were born and raised in the East. How did that shape your view of labor law?

My grandfather worked in potash mining in Thuringia. That’s when I noticed investors coming from West Germany who then closed the plant. And I experienced how companies were liquidated in the post-reunification period when I grew up in Saxony. Labor law wasn’t able to do much, especially because important labor law institutions were not relevant. Collective agreements and, above all, works councils were hardly an issue. These impressions later shaped my understanding of labor law. It is important to me that company co-determination is expanded and adapted to the requirements of tomorrow’s working world. We must not forget that it There are many areas in which important employee rights do not play a role.

What do you mean?

Let’s look at truck drivers, for example, who went on strike in Gräfenhausenor the working conditions for delivery services and delivery people: In many cases, labor law simply does not act as the relevant enforcement mechanism for labor standards. Fewer and fewer conflicts end up in labor courts, and state supervision is structurally understaffed. In many places it is the works councils that ensure compliance with labor rights in their companies. It is all the more painful that, according to figures from the Hans Böckler Foundation, well under 40 percent of employees now work in a company with a works council. An important factor in this trend is the structural change that is accompanied by a decline in the number of well-paid and co-determined employment relationships. At the same time, areas are growing in which co-determination structures first have to be established. And as digitalization advances in companies, it becomes increasingly difficult to exchange and organize information in the workplace.

With a view to the work stoppages at the railway, there were calls to restrict the right to strike in the critical infrastructure. How do you rate that?

It has to be said: If the train drivers were still civil servants, we wouldn’t be talking about this topic today. The situation is therefore a consequence of political decisions. And as far as the term critical infrastructure is concerned, this, like the so-called services of general interest, is not a legal term. In the political debate, it often seems to me that it is not clear what is meant by this. And if we look at everything else that is considered systemically important, hospitals, daycare centers or care facilities, these are areas where it is extremely difficult to carry out strikes. This has to do with the fact that the employees here have a strong sense of responsibility, but it is also more difficult to create economic pressure on the employer. Wanting to restrict the right to strike here in particular is absurd and difficult to implement legally – after all, it is a fundamental right that applies equally to everyone.

The debate about the right to strike is rather defensive. Where do you see union leverage to go on the offensive?

Interest groups are becoming more important again for many employees. This also has to do with the fact that employers have withdrawn from the social partnership and the pressure on working conditions is increasing. The comparatively good situation on the labor market also plays a positive role in union success. In addition, the union’s self-image is changing with the new expectations of colleagues in the company. But since the weakening of co-determination has structural reasons, the turnaround cannot come solely from the unions themselves. What is needed is a solid basis for labor law. Lawyers from the trade unions have presented a proposal for a modern works constitution law. There are also concrete proposals on the table to strengthen collective bargaining.

In this context, how do you assess the “We ride together” alliance between Verdi and the climate group Fridays for Future?

The necessary ecological restructuring of the economy clearly shows that the question of how we work is a political one. The decisions that are made at a corporate and political level have a direct impact on how we work in the future. And from the other perspective, a sustainable economy is only conceivable from a social perspective, since the principle of competition conflicts with ecological sustainability. In this respect, “We Drive Together” shows that it is too narrow a view to limit the mandate of employees to social issues and the field of action of social movements to public discourse. Another example of this is the nursing sector, where working conditions depend heavily on hospital financing regulations and agreements with health or nursing care insurance companies. If you want to improve working conditions here, which would be in everyone’s interest, you also have to argue politically.

Whether this succeeds is also a question of the balance of power. How do you influence the understanding of the law?

Our approach as a legal institute is clear: by discussing issues of labor and social law from the perspective of employees. In the employment law discourse, large law firms close to companies and financially strong, as well as conservative traditions of thought, have a great influence. This means that debates are often conducted from a top-down perspective. This already has an impact on the choice of topic: the labor law deficits in precarious areas of the world of work or union busting are underexposed. It is also about a different perspective on important figures in labor law. Let’s take collective bargaining autonomy: In the past, the ability to conclude collective agreements was in principle derived from state legislation. That was the conservative position in the 50s and 60s. Then the zeitgeist changed. The prevailing opinion was that collective bargaining autonomy was legitimized by the autonomous membership of the association. This is a liberal idea. However, we believe that these concepts ignore the actual problem of employment relationships under capitalism, the structural power imbalance between wage-earning employees and companies.