The case before the court
A professional association not covered by collective bargaining agreements brought a dispute with a major telecommunications company before the Bonn Labor Court.
The straw that broke the camel’s back: The professional association demanded that the company send information about the works council election by e-mail to all company employees who were working from home at the time due to the Covid-19 pandemic. The professional association wanted to define the content of the e-mail without any restrictions by the employer.
The company did not agree. After all, the association was free to publish any desired “union” information on the company’s intranet. That would have to be sufficient. On the one hand, employers are required to remain neutral, particularly with regard to works council elections. On the other hand, the company is not required to provide (even non-bargaining) unions with the company’s own property and resources in this way.
The professional association held a different view and took the dispute to court, seeking a ruling that the company was required to send the requested e-mail.
Balancing the interests of unions and employers
Cases like these need to strike a balance between the interests of the union (or the professional association) and the interests of the employer, as both sides can cite fundamental rights that may be violated.
The fundamental right of freedom of association of a trade union (Section 9 (3) of the Basic Law (GG) i.e. the German Constitution) also includes the right to send information about its own work to members.
However, there are limits to this aspect of freedom of association. If the union needs to access the employer’s systems and resources, it is important to weigh the options: Does the employees’ interest in receiving as much information as possible from the union prevail? Or does the employer’s interest in undisrupted operation and the preservation of its resources prevail?
It is worth noting that excessive access to the resources would interfere with the established and exercised business activities (Section 12 of the Basic Law (GG) and Section 14 of the Basic Law (GG)).
Does the right to send e-mails equate to the entitlement to send e-mails?
Furthermore, if the union aims to provide employees with information, the union itself may send e-mails to members’ work e-mail accounts, even without the employer’s consent.
Yet, the legal dispute before the Bonn Labor Court represented a different situation. In this case, the professional association demanded that the employer company itself send e-mails with union information to all employees.
The limits of freedom of association: the right to the established and practiced business?
Consequently, the court logically came to a different conclusion: A company is not required to actively send union information to employees’ company email addresses even while employees are working from home during a pandemic. This would excessively disrupt the employer’s own operations and draw too intensively on employer resources.
In this specific case, sending the mails was also not necessary to effectively exercise the right to freedom of association. The union had the option of posting the information on the intranet, which employees could also access from their home offices.
Therefore, the Labor Court has confirmed the autonomy of collective bargaining and independent nature of the coalitions.
Summary of the key facts:
- A union’s right to freedom of association includes the right to send information to members via professional email accounts.
- If the union wishes to access employer resources in order to provide information to members, the interests of the union and the employer must be weighed against each other.
- The employer is not obligated to actively participate in distributing information, especially if the employer provides access to the information via the intranet, for example.