Should Germany prepare for a wave of strikes?

Not specifically, no. The right to strike is derived from Article 9 para. 3 of the German Constitution which guarantees the freedom of labour coalitions for employees and employers, including the right to engage in activities that are typical for a labour coalition such as strikes. Case law has developed this right further.

Generally, only a union can call its members to support a strike. Depending on the degree of organisation of the employees in unions, strikes are therefore more likely in certain sectors than in others. In general, all employees covered by the union’s decision to strike can participate in it. This will be most likely the union members that are affected by the ongoing negotiations; however, it can also include non-members (unorganised employees or members of a different trade union) under certain conditions. This applies to executive employees (leitende Angestellte) as well, whose participation in a strike, however, will be rather rare in practice. Managing directors and members of the supervisory board on the other hand cannot strike.

The strike must be directed against the union’s collective bargaining partner: the employers' association (Arbeitgeberverband) or the individual employer. A strike that is not supported by a trade union is an unauthorised “wild” strike (wilder Streik), which is illegal.

A strike is a temporary work stoppage of several employees, carried out with the intention of exerting pressure on the other party in collective bargaining negotiations. The aim of the unions is to successfully enforce their demands by reaching a conclusion of a collective bargaining agreement. There are different kinds of strikes, for example:

• sympathy strike (Unterstützungsstreik) – (supporting a primary, “external” labour dispute – only permissible under very strict conditions);
• warning strike (Warnstreik) – (short work stoppage showing the determination of the employees during ongoing negotiations).

Generally, a lawful strike will start with an effective industrial action decision (Arbeitskampfbeschluss) of the trade union, which must be made known to the opponent (i.e., the relevant employers’ association or the individual employer). This will be followed by the trade union's official call for a strike, addressed to the employees, asking them to participate in the labour dispute.

A reason is needed for a strike. Only “collectively negotiable objectives” can be pursued. Examples would be a demand for salary increases or reductions in working hours. Political strikes are not permitted. The question, whether trade unions can demand an automatic inflation adjustment, is obvious. Just recently, the labour court in Munich classified the union’s demand for an automatic inflation adjustment as questionable without having to decide about it in the end.

Furthermore, the union and its negotiating partner may be bound by a peace obligation (Friedenspflicht) resulting from a pre-existing collective bargaining agreement between the two. As regards aspects that are already regulated in that collective bargaining agreement, a labour dispute between those parties would not be permissible during the term of the collective bargaining agreement.

Above all, the ultima ratio principle applies i.e., the parties must have exhausted all legitimate and reasonable possibilities to resolve the dispute peacefully. Strikes should only be the last resort.

Finally, strikes need to be proportionate.

The parties often debate to what extent the strike criteria are met, not infrequently in court.

There is no fixed time limit. However, a strike is no longer proportionate and therefore unlawful if the economic existence of the strike-stricken employer is seriously jeopardised. This, however, can only be assessed on a case-by-case basis.

By reaching an agreement, if necessary following a specific, but time-consuming, arbitration process, or by persuading a court to order the strike to be stopped via interim injunction.

An unlawful strike would mean a breach of employment as the employee is required to work. As a consequence, the employee need not be paid, risks disciplinary action and the employer could seek damages against the union or even – rather unlikely – the striking employee individually.

Assuming the strike is lawful, the employment contract is essentially suspended, meaning the employee is not obliged to work but s/he will also not be paid. However, dismissals and other disciplinary actions because of the strike are unlawful. Wider staff communication and sometimes PR are paramount.