Improving working conditions in nursing is a legitimate goal, says the legal opinion. But the path taken is questionable.
(Photo: dpa)
Berlin It was one of the last projects that Health Minister Jens Spahn (CDU) and the grand coalition still got on the way: the law on the further development of health care.
Among other things, it provides that, from September 2022, private care providers will only receive money from the care insurance funds if they are bound by a collective agreement or church labor law regulations or if they at least pay appropriate wages and salaries.
The government wants to improve working conditions in the industry, counteract the shortage of skilled workers and ensure more collective bargaining coverage. But several private care providers do not want to accept this and – supported by the employers’ association BPA (Federal Association of Private Providers of Social Services) – have lodged a constitutional complaint against the law.
“The collective bargaining agreement ignores the constitutionally guaranteed freedom of the state in terms of wage formation and wage determination,” criticizes BPA President Rainer Brüderle. “Here the state becomes invasive.”
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In order to underpin its position, the association commissioned the labor lawyer Felix Hartmann from the Free University of Berlin with an expert opinion, which is available to the Handelsblatt. Hartmann’s conclusion: The obligation to adhere to the tariff for care is unconstitutional for several reasons.
According to Article 12 of the Basic Law on freedom of occupation, companies have the right to freely negotiate working conditions. According to the report, this is violated by the obligation to pay collective wages. The legislature can restrict the law if it serves the common good and the interference is proportionate.
In 2006, for example, the Federal Constitutional Court declared the procurement law of the State of Berlin, which made the award of public contracts dependent on the contractor’s compliance with the tariff, to be legal. Because companies that do not want to pay a collective wage can certainly work for other clients, just not for the State of Berlin.
In the care sector, however, the situation is completely different, argues Hartmann. In this case, providers are de facto dependent on concluding supply contracts with the long-term care insurance funds and using them to account for their services. Apart from this, economic survival is “at best conceivable in niches,” he writes in the report.
The right not to join trade unions
There can be no question of voluntary compliance with collective agreements, as in the case of the Berlin Public Procurement Act, in care. Because providers who did not want to pay collective wages could hardly survive economically.
However, the constitutional court will also have to deal with the question of freedom of association. Article 9 of the Basic Law secures the right to join trade unions or employers’ associations – but also to stay away from such associations. Hartmann sees this “negative freedom of association” as violated.
Because the new legal framework leaves private care providers no realistic option to forego normative collective bargaining. An employer who is obliged to pay collective wages can hardly refuse the request of a union to also conclude a collective agreement itself.
Achieve goals without drastic encroachments on fundamental rights
Hartmann also does not consider the reasons for the encroachments on fundamental rights to be valid. And he doubts that they are actually necessary to achieve the stated goals. It is true that the legislature is pursuing a legitimate goal if it wants to combat the shortage of nursing staff. It is unclear whether and to what extent this is due to the payment.
There are also other ways to ensure better pay in nursing, for example through the industry-specific minimum wage commission. Politicians could also declare a collective agreement concluded between an employers’ association and a trade union to be generally binding by means of an ordinance and thus extend it to the entire industry – even if a corresponding attempt had failed this year.
If Hartmann has his way, the law on care-specific tariff compliance that Spahn has put in place cannot endure in Karlsruhe. Because it deprives “the operators of care facilities the opportunity to use their company economically by freely structuring working relationships”.
Upon request, the Federal Constitutional Court confirmed that four plaintiffs had lodged complaints against the law. When a decision will be made is currently not foreseeable.
More: There is also a nursing emergency at home, not just in the homes.