Strikes Against Industrial Peace Provisions Unlawful, Says Federal Court

As airport and airline strikes have become an almost annual event, in a landmark decision the Federal Labour Court (Bundesarbeitsgericht, BAG) has ruled on the obligation to pay damages in the event of an unlawful strike (judgment dated 26 July 2016, docket number 1 AZR 160/14)..

The relevant strike occurred in 2012 when the Air Traffic Control Union (Gewerkschaft der Flugsicherung, GdF) demanded changes to a collective bargaining agreement. Whilst most provisions could be terminated at the earliest on 31 December 2011, certain provisions remained valid until at least 31 December 2017. The airport operating company, Fraport, and union GdF took part in mediation sessions. These sessions ended with a mediator’s recommendation, which also aimed to amend parts of the collective bargaining agreement that were valid until the end of 2017.

GdF-organized employees went on strike to enforce a change of contractual terms. In doing so, they ignored the industrial peace obligation which stipulates that provisions of a collective bargaining agreement which have not been terminated must not be supported by strikes as a means of industrial action. After 200 employees went on strike for two weeks, about 1,700 flights had to be canceled. This resulted in damages in the amount of EUR 5,2 M.

The Federal Labour Court considered such behaviour to be illegal. As the strike was called in order to exert pressure on Fraport to change provisions that remained valid and that could not be terminated, it was held illegal as a whole. The union’s argument, that it would also have held this strike regardless of the provisions of the collective bargaining agreement which could not be terminated, was rejected by the court. It held that such a strike would have pursued a different purpose and objective and did not permit for such an abstract, hypothetical justification for the illegal strike. GdF was held liable for the losses that Fraport suffered.