1. Collective bargaining jurisdiction
By resolution of September 27, 2005 (- 1 ABR 41/04 -) the First Senate decided that IG Metall was responsible for concluding collective agreements for employees in IBM companies in Germany that provide services in the field of information technology is responsible. Collective bargaining responsibility generally depends on the organizational area specified in the statutes of a union. IG Metall’s responsibility has arisen at the latest since the 1995 amendment to the statutes, according to which it is responsible for “companies … in related service sectors, in particular information and communication technology and data processing”. This does not stand in the way of collective bargaining responsibility for the ver.di union. In principle, a union can freely determine its organizational area. Their collective bargaining and association autonomy includes the right to change the statutory area of responsibility. This can lead to several unions claiming responsibility for a newly covered area. This alone does not contradict the admissibility of the amendment to the statutes. The applicability of the relevant collective bargaining law then depends on the principles of collective bargaining plurality and collective bargaining competition. It cannot be ruled out that several DGB unions have dual responsibility for the same area. However, IG Metall has committed itself in its statutes to follow the statutes of the DGB. After that, it could only change its organizational area in agreement with the affected DGB unions and with the consent of the DGB Federal Committee. This was missing. Nevertheless, the violation of the DGB statutes in external relations with possible collective bargaining partners did not lead to the ineffectiveness of the supplement to the statutes. The DGB statutes in force at the time did not provide for such a legal consequence. The collective bargaining responsibility of IG Metall does not conflict with an agreement reached by IG Metall and the ver.di union before the DGB arbitration tribunal to establish a collective bargaining agreement for IBM’s operations and companies. The agreement does not expressly address the question of collective bargaining responsibility. It only regulates the formation of a collective bargaining community – which was not subsequently practiced. In doing so, it tacitly assumes that IG Metall and ver.di have mutual collective bargaining responsibility.
2. Tariff competition
In its judgment of March 23, 2005 (- 4 AZR 203/04 -) the Fourth Senate confirmed that there is collective bargaining competition if different collective agreements apply to the same employment relationship. The collective bargaining competition must be resolved according to the principle of collective bargaining unity in such a way that only the more specific collective agreement applies.
Company collective agreements always represent a more specific regulation than association collective agreements. The Senate further decided that collective bargaining competition also exists if, in addition to a collective agreement that is generally binding, another collective agreement applies to an employment relationship by reference to the employment contract. A company collective agreement that applies to an employment relationship by virtue of a contractual agreement therefore supersedes, as a more specific regulation, an association collective agreement that applies to the employment relationship by virtue of general validity – and is also referred to in the contract – concluded by the same union. The principle of favorability (Section 4 Paragraph 3 TVG) is not applicable to this case. Its application would lead to results that are incompatible with the spirit and purpose of the general declaration, because the unorganized employee would be better off than a union member. However, the generally binding declaration aims to ensure equality between organized and unorganized workers. Section 5 TVG must therefore be reduced teleologically.
3. Binding of the collective bargaining parties to fundamental rights
The collective bargaining parties must observe the general principle of equality. It is disputed whether this obligation arises from a direct or only indirect application of Article 3 para. 1 GG results. In its judgment of August 16, 2005 (- 9 AZR 378/04 -), the Ninth Senate decided that the principle of equality – regardless of the dogmatic derivation – also applies when the same collective bargaining parties regulate the legal relationships of employees in the same professional position in different collective agreements . In this respect, it is simply a question of how standards are set in practice. The principle of equality prohibits essentially similar situations from being treated differently without an objective reason. Judicial control is carried out by the parties to the collective agreement through Art. 9 Para. 3 GG limited collective bargaining autonomy. Whether a collective agreement regulation is contrary to equality is determined by the purpose pursued by the parties to the collective agreement with the service, as this primarily results from the wording, the standardized eligibility requirements, the exclusions and the history of its origin. The collective bargaining parties can pursue multiple purposes with one service. If a transitional pension consisting of a supplementary pension and an unfitness to fly pension is introduced for the first time in a company-related collective agreement, there is no objection if the parties to the collective agreement take into account the costs incurred by the employer when designing the benefit and therefore not all years of employment already completed are grounds for entitlement.