What is a strike


1. Term: Combat action by the employee side in industrial action; Joint and scheduled stoppage of work by a large number of employees with the aim of achieving a specific purpose of the fight and to resume work after the purpose of the fight has been achieved. How many workers have to go out of work in order to speak of a strike depends on the circumstances of the individual case.

2. Legality: a) The Basic Law guaranteed constitutionally the strike as a means of industrial action (Art. 9 III GG). Without the leverage of the strike, the freedom of the collective bargaining partners to conclude collective agreements (collective bargaining autonomy) could not take effect.

b) It is however not every strike is lawful; there is no legal regulation in this respect. According to the principles developed by legal doctrine and law, a strike will only be of the prevailing opinion among the following Conditions as a lawful strike accepted:
(1) The strike must run by a union i.e. the union must either call the strike or approve and continue a strike that has already started. Any strike that is not led by a union but by a group of workers (wildcat strike) is illegal.
(2) The strike must take place against one Tariff partners (Employers or employers' association). Strikes with the aim of forcing political organs (e.g. the Bundestag) to take certain measures (political strike) are not allowed.
(3) With the strike must be the collective Regulation of working conditions, or a tariff adjustable and permissible aim strive for, e.g. the collective agreement of wages and vacation. Hence are Demonstration strikes not permitted during working hours to draw attention to social grievances (BAG 23.10.1984 - 1 AZR 126/81).
(4) The strike must not be against Basic rules of collective labor law, Above all, violate compliance with the collective bargaining agreement.
(5) The strike must not be against the Principle of proportionality and the fair warfare violate, which includes, above all, the failure to use threats and uses of violence. The principle of fair warfare also implies the duty of the trade union conducting the strike to set up an emergency service (maintenance work, emergency work) if this is necessary to avert disproportionate damage to the employer or to ensure public safety.
(6) The union must have exhausted all possibilities of peaceful agreement (peace obligation); the strike must be the last possible means, which ultima ratioto enforce the union demands.

Strikes by civil servants (civil servants 'strike) run counter to the civil servants' duty of loyalty and, if they violate civil servant law, are illegal.

3. Permitted types of strikes: Recent case law is generous in favor of the trade unions. According to this, in addition to full and priority strikes, the following are basically permitted: warning strikes (BAG, 21.6.1988 - 1 AZR 651/86), sympathy strikes (BAG, 19.6.2007 - 1 AZR 396/06), strikes against companies with OT membership (LAG Hesse, September 17, 2008 - 9 SaGa1442 / 08), so-called flash mob actions (BAG, September 22, 2009 - I AZR 972/08; BverfG March 26, 2014 - 1 BvR 3185/09), strikes to obtain a social plan (BAG, April 24, 2007 - 1 AZR 252/06).

4. Statistical recording: The Federal Employment Agency publishes quarterly information on the companies affected by the strike, the employees involved, the total duration of the strikes and lost working days by economic group.

5. Legal consequences: Vein lawful strike does not lead to the dissolution of the strikers' employment relationships; it only leads to the suspension of the mutual rights and obligations arising from the employment relationship. Accordingly, a lawful strike is not a reason for dismissal without notice. The employer has the right to lock out. The workers are not obliged to work for the duration of the strike; During this time they are not entitled to wages, paid vacation or unemployment benefits (industrial action).

b) An employee who is involved in a illegal strike involved, commits a breach of employment contract. However, the employer can only dismiss an employee without notice for this reason (extraordinary dismissal) if the employee has acted culpably, i.e. if he was aware of the circumstances that made the strike illegal.