Access rights for recruiting
Trade unions responsible for collective bargaining want to be able to recruit members where potential members gather: in the workplace. The law takes this into account and Section 2 (2) Works Constitution Act (BetrVG) grants trade unions responsible for collective bargaining access rights to the company for the purpose of recruiting members, among other things. This right also includes external representatives and applies regardless of whether members are already working at the company. Since a decision by the Federal Labor Court in 2006, this has been recognized as part of the trade unions’ constitutionally protected freedom of activity (Art. 9 (3) sentence 1 of the Basic Law (GG)).
“Digital access” is a bone of contention. What has applied to date?
Digitalization is changing labor law in many areas. One current example is the entry into force of BEG IV, which enables certain digital notices on the intranet, digital employment contracts and references, etc.
Naturally, this inevitably led to the question of whether there are also digital access rights for trade unions to recruit members? Are trade unions responsible for collective bargaining allowed to contact employees at companies via e-mail in order to recruit them as members and use their work address for this purpose – without the employer’s consent?
The Federal Labor Court already addressed this question in 2009: What is permitted and covered by Art. 9 (3) of German Basic Law (GG).
E-mail lists and space on the intranet?
The case in which the Federal Labor Court recently reached a decision is slightly different: A trade union demanded that a company actively support the digital recruitment of new members as follows:
- By disclosing all company e-mail addresses of employees in order to send employees up to 104 e-mails per year,
- granting access to the Group-wide network as an “internal user” to enable the union to post advertising articles there and
- by creating a link on the intranet homepage to the trade union which submitted the complaint.
In the age of digitalization, the trade union regarded this interpretation of Art. 9 (3) German Basic Law (GG) as appropriate. Accordingly, the trade union wanted this demand to be confirmed in court after the employer – a sporting goods manufacturer based in Franconia – refused these demands.
The employer and Federal Labor Court agree: the demands go too far!
However, the employer did not regard actively supporting the union’s recruitment efforts within the company as its duty. It was pointed out that employers are not required to distribute fliers either. The limits of Art. 9 (3) sentence 1 have been reached.
The Federal Labor Court agreed:
“An employer is not obliged to provide the trade union responsible for collective bargaining with the work email addresses of its new and existing employees for the purpose of recruiting members.
Such a request cannot be based on an interpretation of the freedom of association guaranteed by Art. 9 (3) German Basic Law (GG) in the course of developing the law”, stated the Federal Labor Court in its press release.
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Summary of the key facts:
- Trade unions with collective bargaining responsibilities are allowed to recruit members at companies. They must be granted access to the company to do so.
- In this context, employees may be contacted via their business e-mail addresses even without the employer’s consent.
- Art. 9 (3) sentence 1 GG does not guarantee any further entitlement to digital access to the company (provision of e-mail addresses, access to the group-wide network, links on the intranet).
