Margin protection clauses in collective agreements are invalid
Qualified tariff differentiation clauses, referred to as margin protection clauses, in collective agreements are invalid according to a recent ruling by the Federal Labor Court in Erfurt of March 23, 2011 (4 AZR 366/09 - lower court: Hamburg Labor Court, Judgment of February 26, 2008 - 15 Ca 188/08). The ruling confirmed the landmark decision of November 29, 1967 of the Full Senate of the Federal Labor Court.
The proceedings concerned a dispute between Hamburger Hafen und Logistik AG (HHLA) and union Vereinte Dienstleistungsgewerkschaft ver.di. By means of a declaratory action before the Hamburg Labor Court, HHLA asked for a review whether the company agreement entered into with union ver.di from 2008 was in compliance with collective bargaining law and the Constitution.
This agreement included a clause allowing for recovery aid of EUR 260 annually. Under the collective agreement, this aid should be specifically paid only to ver.di members. For the protection of this service, ver.di members were supposed to, in the event of a payment by HHLA to non-union members or other organized workers, immediately receive an equivalent, additional entitlement (margin protection).
HHLA had brought an action for declaration of invalidity of both the simple differentiation clause and of the margin protection clause in the collective agreement.
During the collective bargaining with ver.di, HHLA had already made it clear that such a margin protection clause was unconstitutional since it violates the constitutional right of positive and negative freedom of coalition.
The ruling now ensures that HHLA can continue to treat its employees equally. As intended, HHLA will pay the recovery aid, stipulated in the collective agreements, of EUR 260 per calendar year to all employees working in companies covered by collective agreements.
"The ruling limits the power of collective agreement provisions and represents a strengthening of individual freedom of contract. As a result, it remains possible for employers in the future to treat their employees equally regardless of union membership,“ said Dr. Andreas Walle, Specialist Lawyer for Employment Law and Partner at law firm Heuking Kühn Lüer Wojtek.
Hamburger Hafen und Logistik AG is a leading port logistics provider in Europe. With their segments Container, Intermodal and Logistics, HHLA covers vertical sectors along the transport chain. Efficient container terminals, high-performance transport systems and a full range of logistics services form a complete network between the port and the European hinterland.
Counsel to Hamburger Hafen und Logistik AG: Heuking Kühn Lüer Wojtek, Hamburg; Dr. Andreas Walle (Employment Law), who has represented the client in legal matters for numerous years.