Labor law: Green Justice Senator wants collective action right

Lady Justice

So far, a uniform clarification of similar legal issues in labor court proceedings has only been possible in very limited special cases.

(Photo: dpa)

Berlin Hamburg’s Justice Senator Anna Gallina (Greens) is calling for a collective right of action with which employees’ claims under labor law can be enforced more easily. “Doubts about the interpretation and application of regulations such as pay or working conditions affect a large number of employment relationships and lead, as in consumer protection law, to mass proceedings,” Gallina told Handelsblatt. “I would like the options for the uniform clarification of similar legal disputes to be expanded here.”

In a resolution proposal to her country colleagues, which is available to the Handelsblatt, Gallina calls for the establishment of a working group. Together with the Federal Ministry of Justice and the Federal Ministry of Labor, this should examine the introduction of a “collective action in labor court proceedings” and work out specific proposals. “It’s about protecting workers,” said Gallina, who wants to present her initiative on November 11 at the Justice Ministers’ Conference in Berlin.

As early as 2018, when the federal government introduced the model declaratory action in civil proceedings, the German Trade Union Confederation (DGB) demanded that this not only be limited to consumer protection, but also to introduce a collective action under labor law. Collective legal protection is necessary because the individual employee is structurally inferior to the employer.

In June of this year, the right to class action for trade unions was also a topic in the Bundestag Committee on Labor and Social Affairs, where motions from the Greens and the left to strengthen collective bargaining were discussed. In its statement for the expert hearing, the employers’ association BDA rejected a corresponding approach.

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A collective right of action is “incompatible with the principle of individual legal protection”. This has proven itself and should not be further undermined. “The right to classify actions would not only threaten the peace of the company and lead to an increase in legal disputes, but it could also strain the cooperation and the negotiating basis of associations and unions,” writes the BDA.

Labor lawyer is critical of the advance

The right of group actions was brought into play, for example in connection with the Pay Transparency Act, which is intended to protect women from wage discrimination. Here a woman who feels discriminated against has to sue her employer individually. But critics argued that the inhibition threshold is very high, especially if the employment relationship is not to be jeopardized.

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So far, a uniform clarification of similar legal issues in labor court proceedings has only been possible in very limited special cases. It is not possible to bundle different individual lawsuits. That is why it often takes a long time for the case law to come to a uniform line.

Justice Senator Gallina is convinced: “Model lawsuits can usefully supplement legal protection through individual lawsuits.” If a large number of similar issues are clarified in a model lawsuit, legal certainty is “faster and more resource-conserving” possible than in waves of lawsuits. “In this way, we also prevent employees from foregoing their claims because they fear for their jobs, shy away from litigation costs or the opposing party plays for time.”

Gregor Thüsing, Director of the Institute for Labor Law and Social Security Law at the University of Bonn, sees it differently. All civil law is initially based on the responsible market participant, who is therefore also responsible for enforcing his rights. “If you don’t want that, you have to explain why the individual can’t enforce his rights here,” Thüsing told the Handelsblatt.

Poisoned Gift?

However, since the threshold to court is low in labor law, for example through capped court costs or legal representation by a trade union, this assumption does not seem plausible. In addition, in the case of a representative right of action, a union can even sue against the will of an employee in case of doubt. In France, the collective action law applicable there is sometimes referred to as a “poisoned gift”.

More: Lots of opportunities, little competition: seven reasons to apply in November.

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