Vacation entitlements in Germany: The role of collective bargaining and works councils

At a glance ... Productivity can play a role in collective bargaining both as an input and as an output; as an input it is a benchmark for wage agreements, as an output it is affected by the collective agreements. Our study of four sectors shows some fundamental differences concerning the role of productivity in collective bargaining agreements in different areas of the economy. Whereas productivity is still important to define and legitimize wage demands in the metalworking sector, it is no relevant benchmark in the service sectors we analysed. The recognition of productivity as an input factor seems to be important for regarding it as an output factor as well. It is only in the metalworking sector where productivity as an output has some significance. There are three collective bargaining issues focusing on productivity: performance based pay, profit sharing and, most explicitly, derogations from collective bargaining agreements.

Collective bargaining agreements are contracts that resist application of traditional contract law. This creates an analytical problem. On the one hand, collective bargaining agreements seem like ordinary contracts. The collective bargaining agreement is a written document that creates enforceable rights and duties between management and the union. Yet collective bargaining agreements have special qualities that make certain contract principles inapplicable. First, there are many heterogeneous parties on both sides of the agreement. Second, unlike ordinary contracts, collective bargaining agreements are often intentionally silent on significant matters. In order to be of a readable length, collective agreements must be written in generalized language that is capable of capturing the myriad relationships between management and labor. Third, bargaining over both the present and future agreements continues after the parties have signed. These differences, inter alia, have generated debate in the federal circuit courts and among commentators about whether to apply traditional rules of contract interpretation to collective bargaining agreements or to create a specialized set of rules. One important question is whether, and to what extent, collective bargaining agreement analysis should extend beyond the four corners of the document in order to determine the mutual intent of the parties. It is critical that judges and arbitrators, each with a unique kind of authority over collective bargaining agreements, use the interpretative method best suited to their distinct interpretive projects. This Note argues that judges deciding procedural arbitrability questions should use a strong parol evidence rule, while arbitrators resolving substantive disputes about collective bargaining agreements should use a weak parol evidence rule. If judges do not use a strong parol evidence rule, they threaten to undermine the benefits of arbitration. If arbitrators do not use a weak parol evidence rule, they risk the same result. The Supreme Court should therefore resolve the split in the federal circuit courts over the appropriate parol evidence standard in order to ensure the success of national labor policy. Part II of this Note describes the current constitutional and statutory regime of collective bargaining agreements and the relationship between arbitral and judicial enforcement. Part III discusses two competing approaches to the parol evidence rule used by arbitrators and judges who interpret and enforce collective bargaining agreements. Part IV concludes by suggesting why judges and arbitrators should use the approach to the parol evidence rule best suited to their distinct interpretive roles.

While employment discrimination and labor law have been studied extensively, the potential of collective bargaining agreements to combat such discrimination has received limited attention. To address this gap, I undertook a comprehensive study of all provisions in Israeli collective agreements over a 60-year period, from 1957 to 2016 (35,520 collective agreements total), inquiring into provisions for the most frequently mentioned worker groups – women, elderly workers, people with disabilities, and parents. I found the group most intensively represented in collective agreements to be that of elderly workers. Moreover, while collective bargaining agreements in Israel promoted both equality for targeted groups and discriminatory practices against them, the prevalence of discriminatory provisions declined over the years. Finally, I compared rights in collective agreements with their contemporaneous legislative status, finding that the combination of collective agreements and legislation has been essential for promoting equality in Israel. In several cases, collective bargaining agreements played a critical role in promoting innovative equality practices, which legislators later adopted. Elsewhere, legislation abolished discriminatory provisions in collective agreements. Yet in all cases, the transparency of collective agreements (in contrast to the confidentiality of individual contracts) proved indispensable to promoting equality

Not only in Germany but in many European states the level of coverage by collective agreements is declining. Since collective bargaining autonomy is based on the principle of voluntary membership, one of its weaknesses lies in the declining degree of organisation on both the employers’ and the employees’ side. In the long term, weak unions cannot ensure fair working conditions. As a result, collective bargaining agreements lose their inherent warranty of correctness. In the legal policy discussion, this has led to calls for the legislator. In response, in 2014 the German legislature passed the ‘Act to Strengthen the Autonomy of Collective Bargaining’ ( Tarifautonomiestärkungsgesetz) to lower the requirements for the extension of collective agreements and to introduce a national minimum wage. As this has not led to significant improvements, there are further-reaching proposals for the statutory extension of collective agreements. The extension of collective bargaining agreements to non-members does not strengthen the social partnership on the employee side. However, it is a legitimate means to avoid a race to the bottom in competing for the lowest social standard; extensions help in creating common labour standards as long as a sufficient margin is maintained for the social partners to negotiate sector-specific regulations and to shape working conditions. A legal system, which is based on rights of freedom and does not consider the freedom of association to be a solely goal-orientated right, offers limited options to strengthen the social partners through legislation. Extensions become increasingly difficult to justify, the higher the existing level of legal protection. Especially in countries with minimum wage legislation and a large amount of employee protection legislation the justification requirements increase. However, at least in Germany, to date the judiciary has not sufficiently considered these aspects. Even though international laws leave substantial freedoms to the states, all legal systems that are based on a strong and vital social partnership should be interested in obtaining and protecting the plurality of collective bargaining agreements. They should only lay down limits, where there are tendencies of eroding solidarity among workforces due to the parallel existence of several collective bargaining agreements. The associations themselves possess limited resources for extending their member base. Still, the more the individual can gain from association membership, the more likely employees and employers are to join their respective associations. Therefore, the state should demonstrate restraint regarding the regulation of labour conditions. However, such restraint will prove difficult for welfare states. Their governments will most likely opt to eliminate deficiencies through legislation, even at the price of further weakening collective bargaining autonomy. Compared to extensions, legal provisions have the disadvantage of being too general and less flexible because of the much slower adaptation process. Therefore, the main argument in favour of extensions is that they facilitate the differentiation of mandatory working conditions. To ensure their legitimation, a number of design options can be considered. Regarding this, neither European nor international law impose high requirements but existing differences between national legal systems demand custom-fit solutions.

24 | International Union Rights | 24/1 REPORT | NORWAY A dark day for dockworkers in Norway Over the past three years, the fight for collective bargaining agreements (CBAs) in three of the major port operating companies in Norway (Risavika Terminal AS, Holship Norge AS and Yilport Oslo) has revealed serious weaknesses in the Norwegian rules on industrial action. The rules on taking industrial action in Norway are regulated by the Labour Disputes Act and the National Agreement. The National Agreement is a collective bargaining framework negotiated and signed the LO, the national trade union body, and the NHO, the national employers’ association. The National Agreement, often called the social constitution, was first signed in 1935. Local bargaining then happens under this umbrella agreement. However, in addition to regulating industrial disputes, the Agreement also limits the scope of industrial action. A clause in the National Agreement states that ‘where a collective agreement is in place, no work stoppages or other industrial action should take place’. Essentially, industrial action is only allowed in the period that a CBA is being negotiated. This includes the process of establishing a CBA. This is upheld by the Labour Disputes Act. Collective bargaining in ports Organisation in the ports differs from other businesses. There are many port users and very few of them need or have the possibility to have their own permanent employees. Some port users, for example, passenger ferries, have a daily need for labour but for short periods at a time. Other port users need many workers for one or two days in the course of a week or a month, whilst others have a sporadic need for workers. A system was set up to secure income and permanent employment for dockworkers and a steady stream of qualified labour for the port users. An office was set up in each port that acted as a sort of employment agency for dock work. The prerequisite for this system working was that all port users, both small and large would make use of the system, giving registered dockworkers the preferential right to this work. This is a system adopted in many ports around the world, especially Europe. This system was underpinned by ILO Convention 137 to secure full employment for dockworkers. Article 3 of the Convention states that: ‘registered dockworkers shall have priority of engagement for dock work’. Norway ratified ILO Convention 137 in 1975. During discussions around its implementation, both the LO and the NHO agreed that there was no requirement to have a separate law or regulation to safeguard the Convention. They agreed that the spirit of the Convention would be contained in collective bargaining agreements. Furthermore, the Norwegian government stated in 1976 that ‘[Employment] offices are created in the ports. These offices have exclusive rights to all port work in the harbour. All regular dockworkers must be registered in this office’. Flags Of Convenience (FOC) A significant portion of today’s Norwegian ships, both local and international traffic, are not registered in Norway. Instead they are registered to countries with lower tax rates and, often, lower rates of salary and labour standards, so-called ‘flag of convenience’ (FOC) states. CBAs for these FOC ships are established by the International Transport Workers Federation (ITF). Dockworkers’ unions are part of these negotiations. All ITF agreements have a clause stating that the ship’s crew should not perform loading or unloading duties in harbours where there are registered dockworkers. This is to ensure the safety of seafarers and to protect their periods of rest. If a ship owner/operator refuses to sign an ITF agreement, they risk a global boycott and the loading and unloading of that ship could be stopped. The same could happen if an ITF Inspector finds that conditions on board the ship do not comply with the CBA. If the NHO and the EU are successful in removing registered dockworkers in Norway, ships’ crews will be able to load and unload vessels for a much lower salary, with questionable training and at a great potential risk to safety. It will leave a huge space for social dumping in the ports and seafarers will lose the protection that dockworkers provide of safe and...

The article discusses the prospects and impediments of collective bargaining legislation’s harmonization of six participants (China, Kazakhstan, Russia, Belarus, Poland, and Germany) in the railway project that has linked China and Europe and has become an integral part of the New Silk Road global initiative. To this effect, the authors have analyzed transnational companies’ experience in making collective contracts and have assessed the degree of the impact of international treaties on the aforementioned countries’ legislation in terms of their involvement in various international organizations’ activities and ratification of the most significant international acts. Based on a comparative analysis of a collective contract’s legislation, the authors have singled out some key features influencing transnational companies’ collective bargaining practices. The analysis revealed the norms and practices that impede and/or boost the extraterritorial application of transnational companies’ collective contracts. Since the countries are members of various international organizations, the international acts on freedom of collective bargaining made it possible to identify legal grounds for distinctions between the social partnership’s legal policies. A meticulous study of individual transnational companies’ collective bargaining agreements and practices enabled the authors to identify systemic links and the Transnational Companies’ (hereinafter – TNCs) practice of determinism due to international regulation and the laws of the country of origin. The research revealed the principal steps forward which should be taken to resolve the issues of extraterritorial application of TNCs’ collective agreements.

Article 39 of Act no. 6356 on Trade Union and Collective Bargaining Agreements regulates which employees benefit from the rights arising from the agreement in the workplace or workplaces where the collective bargaining agreement is applied. Accordingly, the members of the employees’ trade union, which is a party to the collective bargaining agreement, shall as principal benefit from that agreement. Article 25 of Act no. 6356 regulating the discrimination on the ground of trade union activities should also be taken into consideration in the matter of benefiting from the collective agreement. According to this article, difference of treatment between employees who are members of the trade union and those who are not is prohibited, as principal. However the provisions of the collective bargaining with respect of remuneration, bonuses, premiums and money-related social benefits shall be exceptions. This study aims to explain these provisions within the frame of the Court of Appeals.

Purpose– The purpose of this paper is to fill several knowledge gaps regarding the contents of collective agreements, using a new online database. The authors analyse 249 collective agreements from 11 countries – Benin, Brazil, Ghana, Indonesia, Kenya, Madagascar, Peru, Senegal, Tanzania, Togo, Uganda. The authors research to what extent wage and other remuneration-related clauses, working hours, paid leave arrangements and work-family arrangements are included in collective agreements and whether bargaining topics cluster within agreements.Design/methodology/approach– The authors use the web-based WageIndicator Collective Bargaining Agreement Database with uniformly coded agreements, that are both collected and made accessible online. The authors present a quantitative multi-country comparison of the inclusion and contents of the clauses in the agreements.Findings– The authors find that 98 per cent of the collective agreements include clauses on wages, but that only few agreements specify wage levels. Up to 71 per cent have clauses on social security, 89 per cent on working hours and 84 per cent of work-family arrangements. The authors also find that collective agreements including one of these four clauses, are also more likely to include the other three and conclude that no trade off exists between their inclusion on the bargaining agenda.Research limitations/implications– Being one of the first multi-country analyses of collective agreements, the analysis is primarily explorative, aiming to establish a factual baseline with regard to the contents of collective agreements.Originality/value– This study is unique because of its focus on the content of collective bargaining agreements. The authors are the first to be able to show empirically which clauses are included in existing collective agreements in developing countries.

In recent years, industrial conflicts have reached alarming proportions, especially in Ghana’s public sector. In some instances, workers resort to strike actions and marches when employers use lockout and other methods not approved by the Labour Act or set out in a collective agreement. In Ghana, several heads of institutions and the management of most public institutions make unilateral decisions without consulting collective bargaining agreements. Many structures have been thrown into disarray; thus, resulting in industrial tensions at one point or another. This study aims to assess how effective collective bargaining agreements are at resolving labour disputes. A descriptive survey design was used, and the study participants included members of the Public Service Workers’ Union (PSWU) with a sample size of 240 unionised staff members. Poor coordination, lack of shared respect and consultation, and an unfavourable attitude toward union leaders and members were discovered to be the key causes of industrial conflict in the public sector. Furthermore, problems relating to salaries and wages, redundancies and layoffs, gratuities and pensions, and bad working conditions were the other causes of industrial unrest in Ghana’s public sector. It was suggested that employers establish a constructive collective bargaining procedural and substantive rule to react swiftly to economic changes that impact workers’ terms and conditions of service.

In this paper, we empirically examine how collective bargaining agreements relate to firms' automation decisions and employment dynamics. Using novel administrative data on Dutch firms and workers, we link detailed information on collective bargaining coverage to automation expenditures at the firm level. Our analysis yields two main findings. First, firms covered by firm‐level collective bargaining invest more in automation than uncovered firms, suggesting that collective agreements create cost‐incentives for automation. Second, firms that were initially covered by firm‐level collective agreements tend to experience smaller employment growth, which can contribute to the aggregate decline in collective agreement coverage.

The author investigates the different influences of labor shortage on wages in firms with or without collective bargaining agreements. In addition to training, technological solutions, and organizational flexibility, employers can also offer higher wages at a constant employment level to fill vacancies if the current payments are lower than the marginal revenue of the workers. Firms with collective bargaining agreements probably already pay wages according to marginal revenue or, in the case of rent sharing, above it, and the remuneration is probably also not adjusted. Using wage regressions with panel data for German establishments, this paper shows that collective bargaining and a lack of skilled workers can lead to higher wages. However, the latter only applies to firms that are not bound by collective agreements. Hence, wage differentials between these firms decrease, providing further explanation for a countercyclical development of the wage premium from the collective bargaining agreement.

In Turkish law Art. 53 paras 1 and 2 and Art. 54 para. 1 Const. as well as the UCLAA refer to the term ‘collective labour agreement’ in order to tell and talk about a collective bargaining agreement for workers. In this respect, Art. 53 Const. which is titled as ‘collective labour agreement and right of collective agreement’ prescribes that ‘civil servants and other public officials’ shall have the right to benefit from the ‘collective agreement’ (para. 5) and that the terms in connection therewith shall be governed in the laws (para. 7). Accordingly, technically, the term ‘collective labour agreement’ appears to be a term solely used in connection with workers. One can argue that this is a highly superficial distinction and that it stems from the fact that public officials are not granted a right of collective bargaining as broad as the one granted to workers.

Workers in Thailand were given the right to organize and the right to bargain collectively in 1972 when the ban imposed since 1958 was revoked. From the date the long-awaited freedom was allowed, thousands of industrial disputes occurred many of which culminated into work stoppages. Collective agreements concluded in the past were arbitrary and did not differentiate clearly as to labour's and management's rights and interests. The purpose of this study is to investigate whether representatives of most union and management in Thailand have become sophisticated enough to have their respective rights and interests clearly out in their collective agreements. This study is based on both primary and secondary sources of data. The questionnaires were designed and sent to 437 trade unions, 75 of which filled and returned the questionnaires. Other data were obtained from companies' rule books and selected Labour Court cases. Results of the study were as follows:- Workers' rights: The Labour law provides the workers with many types of leave of absence, but the workers through their unions demanded and negotiated for more liberal provision. A. Annual vacation: The law regulates that the employers shall grant their employees the total of six work days with full pay after the employees have served the full year of service. Collective bargaining agreement concluded later allows more days commensurate with length of service. B. Sick leave: Workers are generally satisfied with the current provision, i.e 30 work days with pay annum. Certain agreements contain clauses on whether and how annual performance evaluation should be affected by the extent of sick leave utilized by the workers. C. Other types of leave of absence: Labour-management negotiation little attention to the magnitude of leave as employers are compalled by labour law to announce clearly the rights of workers to take leave and conditions attached. The collective bargaining agreements studied, are, therefore, concerned more with the grievances that resulted from the administration of workers' applications for leave. Workers' interests: Industrial disputes have been predominantly related to wage and other monetary compensations. The collective bargaining agreements, therefore, contain many interest issues major ones of which are as follows. Wage payment: Conditions and procedures are included in 40 agreements. Cost of living allowance: This item is gradually merged into wage rate, but a large number of CBA contain this issue. Overtime payment: Though the agreement, in fact, is the repetition of the law, both union and management still discussed and recorded their agreement to help prevent possible breach and abuse. Other interests: Other interest issues relating to monetary compensation are on wage adjustment along with minimum wage raise, bonus, commission, medical allowances. etc. In general the substance of the agreement is predominantly just the solution to prior grievances. Grievances that motivated workers to unite are mainly payment for their contribution. Both rights and interest issues contained in current collective bargaining agreement, therefore, lack sophistication. They do not cover collective right of the union, union and job security clause, wage escalation clause, productivity clause etc., as commonly found in the collective bargaining agreement of industrialized countries.

Der Beitrag schreibt die jährliche Berichterstattung des IAB in den WSI-Mitteilungen zur Tarifbindung und betrieblichen Interessenvertretung mit Daten für 2018 fort. Zunächst wird die Tarifbindung der Betriebe nach Branche, Betriebsgröße und Bundesland dargestellt. Dabei wird auf die nach wie vor vorherrschenden Unterschiede zwischen West- und Ostdeutschland abgestellt. Seit 1996 hat die Flächentarifbindung in beiden Landesteilen eine deutlich rückläufige Tendenz, auch wenn die Entwicklung in jüngster Zeit weniger eindeutig verläuft. Ergänzt werden die Ergebnisse zur Tarifbindung durch Informationen zum Betriebsrat und zu alternativen Formen der betrieblichen Mitarbeitervertretung. Auch für den Betriebsrat ist in der langen Sicht ein abnehmender Deckungsgrad zu konstatieren. Allerdings scheint dieser Trend 2018 gebrochen. Die verschiedenen nicht gesetzlich legitimierten Vertretungsformen zeichnen sich in erster Linie durch ihre geringe Stabilität aus. Abschließend werden in einer gemeinsamen Betrachtung der betrieblichen und sektoralen Ebene der Interessenvertretung die ausgedehnten betrieblichen Vertretungslücken so wie die „weißen Flecken“ in der Tarif- und Mitbestimmungslandschaft ausgewiesen.

Unlike most previous work, this paper examines the effect of right- to-work laws on flows into unionism through organizing rather than onthe stock of unionism. Organizing offers a far more sensitive indicator of the situa tion of unionism and allows the use of both cross-sectional and time-series methods to explore the impact of the passage of a right-to-work law. The authors find that right-to-work laws have a sizable initial impact on organizing that decay s over time. The effect holds up even when one uses fixed weights and causality tests. Copyright 1987 by University of Chicago Press.