Procedure Concerning Night Shift Allowances:
So, how did the labor disputes between Coca-Cola and its employees arise? According to the collective agreement of the “Refreshment Beverage Industry Berlin and East Region,” Coca-Cola pays a 25% allowance for regular night shifts and a 50% allowance for irregular night shifts.
There are two reasons for this “unequal treatment”: On the one hand, the burden of irregular night work is higher for employees as it is unpredictable. On the other hand, employees working regular night shifts receive compensatory benefits, such as additional days off.
Employees who received lower allowances for regular night shifts filed lawsuits against the pay disparity.
In two cases, the BAG ruled in favor of the employees: the provision in the collective agreement violated the principle of equal treatment under Article 3(1) of the Basic Law (GG). Moreover, the BAG ordered Coca-Cola to retrospectively ensure equal pay for night shift allowances (BAG, ruling of 9 December 2020, file no. 10 AZR 335/20, and ruling of 22 March 2023, file no. 10 AZR 600/20).
This was surprising, as the BAG had ruled in another similar “Coca-Cola case” in February 2023, where this inequality was deemed justified (BAG, 22 March 2023, file no. 10 AZR 332/20).
For more on this, see our post “Different Night Shift Allowances: BAG Sees No Problem.”
Constitutional Complaint Against BAG Rulings:
In this context, it seemed logical for Coca-Cola to file a constitutional complaint against the two rulings of the BAG—and it succeeded.
The BVerfG referred the matter back to the BAG, which must now make a new decision.
Why?
On the one hand, the distinction between the different night shift allowances was not arbitrary, nor was the corresponding collective agreement provision, which did not violate Article 3(1) GG.
The BAG was only allowed to examine the provision in this regard. The BVerfG stated:
“In the case of collective norms that pertain to the core aspects of working and economic conditions, where no specific protective needs are apparent, judicial review based on Article 3(1) GG, in light of the protected autonomy of the parties to the collective agreement under Article 9(3) GG, is limited to a review for arbitrariness.”
On the other hand, the court lacked the competence to decide on the legal consequences agreed upon in the collective agreement. How the parties to the agreement determine specific content and its legal consequences remains up to the bargaining parties, in accordance with collective bargaining autonomy and other constitutional requirements. The BVerfG further stated:
“In determining the legal consequences of discriminatory collective norms, courts must respect the freedom of association of the parties to the collective agreement, and especially their leeway in both factual and legal terms.”
If a collective agreement complies with constitutional frameworks and an unequal treatment in pay is substantively justified, courts do not have the authority to question the resulting legal consequences (i.e., unequal pay).
Because:
“The determination of legal consequences in individual cases is, in principle, for the parties to the collective agreement, the original norm creators, to decide.”
What Does This Ruling Mean?
With this ruling, the BVerfG has strengthened collective bargaining autonomy by clearly setting limits on the BAG’s decision-making competence. A welcome development!
What We Can Do for You?
Do you have questions on this topic? Feel free to contact us!
Summary of the Key Facts:
- Unequal pay for unequal work can be regulated in a collective agreement in line with the principle of equality (Article 3(1) GG).
- The Federal Labor Court is limited to reviewing collective agreements for violations of the arbitrariness prohibition.
- The Federal Labor Court is not authorized to interfere in the determination of legal consequences by the bargaining parties. Otherwise, it would violate their collective bargaining autonomy.
