Work prohibited! – The strikebreaker ban for temporary workers is constitutional

With its decision of 19 June, 2020, the Federal Constitutional Court (Bundesverfassungsgericht – BVerfG) has now confirmed what had long been a source of dissent: the so-called strikebreaker ban according to sec. 11 para. 5 of the Temporary Employment Act (Arbeitnehmerüberlassungsgesetz – AÜG) is constitutional, decision of 19 June, 2020 – 1 BvR 842/17.

In the case on which the decision was based, the complainant, a cinema operator operating nationwide, considered that the strikebreaker ban introduced in the course of the AÜG-reform in 2017 violated her fundamental right to freedom of association. According to the complaint, the regulation is unconstitutional, as it shifts the parity of industrial action at the expense of the employer.

The background to the ban is that employers are increasingly using temporary workers in workplaces affected by strikes in order to maintain – at least partially – the due course of business and actually bypass the strike. Sec. 11 para. 5 AÜG puts a stop to this procedure: Accordingly, hirers are not allowed to employ temporary workers if their company is directly affected by a strike. However, an exception applies if the temporary worker does not take over activities which were previously carried out by employees who are either on strike or who have in turn taken over activities from employees who are on strike.

The constitutional complaint was unsuccessful: After weighing all the interests involved, the judges in Karlsruhe considered the strikebreaker ban to be constitutional. It is true that this would restrict employers in their decision to use temporary workers to defend themselves against a strike. However, the regulation does not prohibit the general use of temporary workers in the company, but limits it to their (in-)indirect use as strike breakers. Therefore, the legislative objective of also granting temporary workers an appropriate employment relationship and maintaining functioning collective bargaining autonomy outweighs the interests of the employer.

With the decision of the BVerfG it is now confirmed that the restrictions of sec. 11 para. 5 AÜG, which interfere with the entrepreneurial freedom of the employer, are constitutional. Employers should therefore refrain from using temporary workers on strike. A violation of this prohibition can be punished with a fine of up to EUR 500,000.00. However, the intra-group lease of employees remains allowed as long as it is only occasional and the employee was not hired for the purpose of the lease. Thus, the intra-group exchange of personnel therefore remains a permissible instrument for bridging capacity bottlenecks during a strike.

Dr. Lorenz MittererKatharina Schlonsak
Specialist Lawyer for Employment Law
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