- General information about strikes in Germany
- Situation for pupils
- Situation for students
- Situation for apprentices
- Situation for employees
- Situation for freelancers
- To be ill…
General information on strikes in Germany
German jurisdiction has a very strict definition of a legal strike. This only refers to the strike of employees (i.e. not “self-employed”). Not by law, but by court decision, strikes in Germany that a) are not called by trade unions, b) go beyond the formulation of concrete working conditions (goals that can be regulated by collective bargaining) or c) show solidarity with other companies, without there being any collective bargaining of their own, threatened by massive claims for damages and the employees concerned with dismissals if appropriate. In addition, the courts have set a wide range of rules and criteria for the unpunished strike.
Strikes outside this narrow labour dispute, e.g. if pupils and students refuse their education as a future worker (i.e. quasi a strike in the reproduction of social labour), are not legally understood as strikes. The legal situation is unclear here or can only be derived from other legal aspects.
Although political strikes in Germany have moved a lot for good, in 1920 even a fascist coup was only halted by an unlimited general strike, Germany thus has one of the most restrictive strike jurisdiction in Europe. In other countries the individual (also political) right to strike is handled as an individual human right, after all it is about (at least temporary) self-determination over our time and creative power. In Germany, on the contrary, the legal protection of profits for companies is treated in the legal view as a human right, which is only to be restricted in serious cases, for as limited a time as possible and as little as possible.
This handling of strikes in Germany has been the subject of several appeals in the past, among others by the important International Labour Organisation (ILO). Many critics also see them in contradiction to European laws, contracts and jurisdiction. At the same time, German courts also argue with the “prevailing opinion” – ultimately a code for the actual practice of strikes. Every attempt at political strike practice (for which a number of organisations, trade unions and labour lawyers in Germany are also in favour) thus offers a realistic chance to reduce the legal risk and improve the acceptance of the right to strike as a human right.
As political strikes can often be a positive motor of social change and an effective tool against precarious legislation like Agenda 2010, this fight is worthwhile for everyone personally.
Situation for pupils
Pupils neither have the right to strike nor are they forbidden. But you have the right to expression of opinion and assembly in general. Although you are obligated to be in school till the end of 9th grade, your rights and obligations have to be weighed carefully (speaking in a legal matter). This includes spontaneous protest.
In the end, strike in school is a conscious transgression of rules, but you’re fighting for liberties, affecting yourself as well as your fellow students. Prior school strikes already changed the discussion regarding their legitimacy. Mind who might support you in the school strike. First off, other pupils. If you’re lucky maybe even your parents or progressive teachers (this education strike is about their rights as well). Additional safety you can get by preparing on how and with whom (e.g. alternative pupils network) you can resist penalties.
You could request a temporary leave (also called exeat) from your school.
Since such request are usually met with a positive response in case of religious reasons, but not in case of political causes, you might obstruct your path to more promising options. So you should only request exeat when you know your schools administration behind you.
You (or your parents) could permit exeat or you play truant on the day of the strike.
This option holds several risks. Your school could penalize you, e.g. in form of detention. On the other hand your parents, as long as the hold custody, could be fined. Therefore it would be advisable to reach out to the strike network and/or supporting trade unions upfront, so we can discuss how to subsidise such costs. If you are truant and it is the date of an exam you risk to fail automatically.
safety in the crowd
As with any other form of civil disobedience, the possibilty of sanctions is declining with quantity. If the majority of a class or even several classes are truant you will be safer. So discuss as early as possible with fellow students how you want to act. Together you will be stronger.
see down below
Situation for students
Student are in the most convenient postion to strike. If attendance isn’t required (see next paragraph), you can strike basically without risk of sanctions. Therefore students are an important column of every education strike and should use these “privileges” solidarily. They can easily strengthen the pressure in the streets, hopefully elevate acceptane and thus are backing up the civil disobediance of more vulnerable strike participants.
If attencdance is required
Some universities require attendance. But legality of this is questioned by a verdict from Mannheim.
The university can not request attendance sweepingly in it examination regulations, as a verdict by the administrative court (Verwaltungsgerichtshof) Baden-Würtenberg said in 2017 (file reference Az.: 9 S 1145/16). A spokesperson highlighted, that the verdict refered to legal position on constitutional level, thus giving it federal significance.
Nevermind that, you could agree to make the list of attendance disappear or stay away collectively. Furthermore we refer to the point “being ill” down below.
Situation for employees
Regardless if you are an apprentice or have a part- or full-time job, you are affected by the strike laws – and in germany these aren’t made for those you want to withdraw their labour to improve social conditions apart from collective agreements.
Basic Law for the Federal Republic of Germany §9 (3) is the foundation of german union and strike laws. It says: “The right to form associations to safeguard and improve working and economic conditions shall be guaranteed to every individual and to every occupation or profession. Agreements that restrict or seek to impair this right shall be null and void; measures directed to this end shall be unlawful. Measures taken pursuant to Article 12a, to paragraphs (2) and (3) of Article 35, to paragraph (4) of Article 87a, or to Article 91 may not be directed against industrial disputes engaged in by associations within the meaning of the first sentence of this paragraph in order to safeguard and improve working and economic conditions.”
Basically, that’s it what is cast in legal form, regarding unions and strike. The legislative gap has been and is influenced by judicial legal interpretation. Usually orientating on NS-legal positions, they aim on minimizing loss of labour and profits by suing workers on strike or trade unions. Thus, severely cutting the democratic potential of influence in comparrison to other countries, the german economy keeps the locational advantage and puts pressure on german workers as well as on colleagues in other states (e.g. demands by french businesses and conservatives).
Insofar a legal strike for better education isn’t possible, as long it isn’t about specific regulations regarding e.g. working hours, retirement or wages.
Allowed to strike is only who has been invoked by a union (you do not have to be member of said union). A union which invoks a strike not aiming to reach a so called “collective agreement” (regarding conditions as listed above) can be existence threateningly fined. Meanwhile vague criteria as “ability to reach a collective agreement” and laws as “Tarifseinheitsgesetz” are putting a spoke in the wheel of small unions.
Yes and no! On the one hand it is a risk for unions to invoke political strike and it requires determination and mutual solidarity. On the other hand judicial assessment often cites “public opinion”, which would mean that they had to bow to plentifully practiced political strike.
By the way: your boss can’t fire you immediately if you are absent without excuse. There has to be at least one valid written warning previously.
Dare the public civil disobediance, practice politcal strike and risk fines or being fired. However this option enables you to sue your way up to European Court of Justice and oblige german courts to change their rulings.
This step has to be prepared well in coordination with colleagues, supporters, labour attorneys and an assisting union.
Argue convincingly for closing the workplace among your colleagues. This most likely is an option for small businesses with leftleaning employees or worker-owned collectives.
see down below
Situation for freelancers
Often freelance work just blurs wages below the minimum, social insurance fraud commited by the employer or the illegitimate dismantling of labour rights. Nevertheless your legal position in the case of education strike is convenient. Since you’re an entrepreneur in applicable law you’re at liberty not to work this day and to encourage colleagues to do as well.
Careful though with long-term cooperation agreements. You should check beforehand if you could face a contractual penalty.
Being sick (or pretending to be sick)
Precarious work and education makes you sick. This is shown in several researches. Possibly you will become sick just on the day of strike. If you would like to know, what that could be, perhaps you can find help on this website:
http://www.krankheit-simulieren.de/krank-machen/ (in German)
Often a medical certificate has to be given to your employer only after three days of illness. These agreements can vary individually. Sometimes it could be from the first day of your illness. Take a look at your contract or in case you are a student take a look at your study regulations. The exact cause of your illness is your private thing. There is no obligation to tell anyone about it.
Do you have to stay home if you are ill?
If you are ill at the day of strike it doesn´t mean you have to stay at home. You only have to behave in a way that you can get healthy soon. So it depends on your diagnosis. For example someone who is getting sick because of stress in school or at work or someone who has depression or something like burn-out definitly has to be on sick leave. Simultaneously being with nice people in the fresh air can be helpful.
Of course there can be conflicts about such things. This is unlikely if you are not recognizable. But be careful. At demonstrations in Germany you must not be completly hooded/mummed. Your face must be shown. Perhaps sunglasses, not typical clothing style or a wig can help.