Dusseldorf, Berlin Right at the beginning of the hearing before the Berlin labor court, Judge Michael Ernst makes it clear: “This will not be a tribunal. It’s not about Flink.” And yet the food delivery service, known throughout Germany for its pink advertising posters, backpacks and bicycles, is at the center of the action.
It should really only be about Raul – and his resignation. Until recently, the young man was still delivering purchases for Flink. But Raul is no ordinary “rider”.
The Verdi trade union is also present at his trial for good reason. Raul wanted to set up a works council at Flink with other comrades-in-arms. And in such cases, legal disputes now seem programmed.
Because the entire start-up scene is struggling with works councils and the associated greater co-determination of employees. Again and again there are court hearings and disputes. Nevertheless, there are now some start-ups such as N26 that have functioning employee representatives.
Especially in the current economic downturn, which has already led to mass layoffs in many start-ups, works councils are gaining in importance. Negotiations on a social plan, which in turn can guarantee the right to severance payments, are only possible with such an interest group.
Judge rejects request for temporary relief
Plaintiff before the labor court is Raul. He asks that his last name not be given – out of concern that other start-ups will not be hired later because of the legal dispute. Raul received an extraordinary termination from Flink after giving an interview to the daily newspaper “taz” in which he criticized the working conditions at Flink.
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The hearing is about Raul’s application for continued employment pending a decision on dismissal. Judge Ernst rejects this and justifies it by saying that Raul is not entitled to special protection. At the time of the dismissal, he was no longer a member of the electoral committee for the works council. Flink sees his own legal opinion confirmed by this decision, it says there.
However, nothing has been finally decided: in May the dismissal will be negotiated again, and in another process in March the appointment of an electoral board at Flink will be discussed. Because despite the efforts started last summer, there is still no works council at the company that competes with Gorillas, Wolt and Lieferando. “If our employees want to set up a works council, we will not stand in their way and support such a project,” said a Flink spokesman.
“It’s a catastrophe how perforated the protection against dismissal is for people who want to set up a works council,” says Raul’s defense attorney Martin Bechert. You would now have to consider whether to move to the next instance. The question is whether companies like Flink are systematically exploiting the loopholes in the law to prevent the establishment of works councils by sacking employees who want to set up an interest group before the process is complete.
Verdi: Flink behaves undemocratically
Raul and Bechert have already received support from the Verdi union. “Flink and others are currently taking advantage of the fact that there is not yet sufficient protection against dismissal during the process of founding the works council. This is undemocratic behavior,” said union secretary Franziska Foullong after the hearing. At the moment, all Flink employees must be aware that they are jeopardizing their financial existence by setting up a works council: “It’s courageous to continue.”
Flink is not the first start-up where the establishment of a works council has led to significant conflicts between employees and management. “I don’t know of any case where there wasn’t at least one injunction to have the election canceled,” says attorney Martin Bechert.
Officially, it is never about actually preventing a works council. On the contrary, the companies find procedural errors in which the courts also have the understanding that works council elections cannot take place in this way. But the accumulation of disputes is remarkable. In the meantime, private non-governmental organizations such as the Aktion gegen Arbeitsunrecht eV are also taking care of the problem.
With a view to delivery services, lawyer Bechert believes that the next wave of layoffs will soon be possible: “The wave of layoffs in delivery services is always in the spring. Now is the time when employees are wanted and needed, in the summer there is less need.”
Hellofresh also in court because of the works council
As in the Flink case, the courts are already dealing with the dispute over the establishment of a works council at the meal kit provider Hellofresh. At the end of last year, the Berlin labor court decided that an electoral board must be set up. But the company is fighting back and is now taking the dispute to the next instance.
The ugly history: employees had already organized a works meeting in the summer to appoint an electoral board. They failed, however, because there was no majority of votes.
The Verdi trade union then accused the company of wanting to prevent co-determination by providing false information and filed an application in court for the appointment of an electoral board. Hellofresh denies that. The district court must now decide on the application.
The works council is also a contentious issue at Flink’s competitor Gorillas, which has now been taken over by the Turkish Getir. In 2021, after much back and forth, employees of the company were able to choose an interest group for all employees in Berlin. “Up to the end, the company management had tried to prevent this,” said a Verdi statement at the time.
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However, the Gorillas works council quickly lost influence again because the start-up converted individual warehouse locations into franchises in which the city-wide works councils have no say.
So the dispute started all over again for some of the employees. The company management was able to stop a planned works council election in the Berlin-Schoeneberg warehouse in October last year. The court recognized that there had been clear deviations from statutory provisions in the composition of the electoral board.
Dispute at Smava after layoffs
The topic is very topical at the online credit broker Smava. After the company recently dismissed employees on a large scale, employees campaigned for a works council election. But when an election board was to be elected in mid-February, according to information from “Finance Forward”, a dispute broke out.
The online service reports, with reference to insider information, that the initiators were attacked by the workforce. The impetus for criticism is that colleagues from Hamburg, some of whom come from the acquired company Finanzcheck, were not included.
Verdi, on the other hand, subsequently made serious allegations against Smava: “Obviously, a small group agreed beforehand and made a mood,” quotes “Finance Forward” Oliver Hauser from the union. According to this, at least one senior executive who was not entitled to vote should have been on site, and several executives should have criticized the initiative with verbal contributions and supported each other. The company was also asked about the processes, but did not want to comment on the details.
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