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1 The General Background
2 The Case
3 Principled Contention
Does principled negotiation leads to better cooperation, as des- cribed and suggested by Roger Fisher, William L. Ury and Bruce 1 ordoes tstill do justice to the human need for strugg- li2 Aga nst the background of the German Collective Labour Law, a practical example of one ins- titutionalised dispute resolution, in which the author participa- ted three years ago, shall demonstrate how German law han- dles the ambivalence of cooperation and need for struggling that maybe transforms the method into a “principled contention”.
The chosen example is embedded in a setting of strongly opposing concerned parties that are legally bound to a strict extrajudicial procedure for reaching an agreement in difficult times, legally obliged to trustful cooperation. Even if the parties prefer locking themselves into their positions, law forces them to negotiate in a principled way:
Arbeitgeber und Betriebsrat arbeiten [...] vertrauensvoll [...] zum Wohl der Arbeitnehmer und des Betriebs zusammen. [...] Sie habenüber strittige Fragen mit dem ernsten Willen zur Einigung zu verhandeln und Vorschläge für die Beilegung von Meinungsverschiedenheiten zu machen. 3
(T ranslation: The employer and the » works « council cooperate trust- fully for the benefit of the workers and that part of the company, in which the works/factory/shop council [in the following as simplifica- ti4 ] s competent. They are obliged to negotiate controversial points for the serious sake of reaching an agreement and to make proposals for settling differences.)
The german »works« council is an institution deriving from the labour movement originated in the 19th century. Specifical- ly it arose from mining workers committees formed around 1900 and the failed try of installing a combined political system based on councils and parliamentary democracy after World War I.5 Thus even if the concept changed a lot,6 t still was linked conceptually with communism in the 1950s, when the »works« councils again should be put on a new legal basis af- ter they were abolished by the Nazis. Hence this lead to pas- sionate controversies between the two positions: effective workers participation no or yes - and if yes, participation only in social issues including personnel planning (social participa- tion) or as well in managerial decisions (economical participa- ti7 Thesepos tions based on the contrary interests of estab- lishing a market economy on the one hand and creating a so- cialistic economic democracy with associated resources on the other.8 Since the social market economy as a compromise prevailed, todays »works« councils participate in questions of (collective) social issues on a relative high level, (individual) is- sues of personnel planning on a lower yet still noticeable level however no proper economical participation even if the »works« councils have to be informed and consulted in such issues. Anyway the controversy about the range of decent par- ticipation as well as the obstacles of installing such an institu- tion in the companies never ended and still flames up recur- rently in companies, where »works« councils are successfully applied.
In order to ensure the principle of trustful cooperation, the Be- triebsverfassungsgesetz (»Works« Constitutional Act), which is t9 provides a procedure of dispute resolution in the form of an (internal) Einigungsstelle (»works« arbitration committee). 0 That is no alternative to court procedures. It is the sole option in not litigable dissensions, when the parties need an agree- ment yet are unable to reach it. At this escalation level, each party has the possibility to call the legally provided committee. If no agreement about its institution and composition can be reached, one can assert the establishment of the committee in court. Especially the decision about the neutral, external chair- person is important. (As an unwritten general rule the court names another judge, if no agreement is reachable in this ques- tion.)
The committees setting provides an independant and neutral chairperson as a facilitator who is able to make conciliatory proposals as well as to vote for one of the parties' proposals if the final voting of the committee members except the chairper- son resulted in a tie. Usually, the »works« arbitration commit- tee leads to a Betriebsvereinbarung (»works« agreement), whether it may literally be an agreement or - merely but equally binding - the committees award based on the chair- persons'crucial decision by using equitable discretion. One exception is the negotiation of an Interessenausgleich (Balance of Interests) as a »works« agreement in case of a planned Betriebsänderung (operational change) that is threatening to inflict severe disadvantages to the workers - with job or wage cuts leading the way.2 Thegoaloftheworkers representatives is to alter the employers manageable decision on behalf of the employees. So this exception appears as the sole instance of proper workers economical participation.
Yet in fact, here the chairperson may only declare, that no agreement is reachable. Thus in this case, her role is more like a mediator than an arbitrator. She doesnt intercede in the dis- pute, she simply moderates and finally decides when to declare the failure of the procedure.13 S nce the negotiation of a Bal- ance of Interests actually is a prerequisite for the well-ordered i14 t is an important
1 Fisher et. al., Getting to yes, 2012.
2 To the dispute as a form of sociation and being essentially related to pacification see Simmel, Der Streit in Simmel, Soziologie, 1908, pp. 186- 205.
3 §§ 2 I, 74 I 2 Betriebsverfassungsgesetz (BetrVG), in English legal cita- tion standard: section 2 paragraph 1 in conjunction with section 74 paragraph 1 sentence 2 of the »Works« Constitutional Act.
4 Annotation: The legal term “Betrieb” is an abstract (and inconsistent) concept without an industrial connotation (which “works” implies) for any kind of company parts in which the companys object on any level is put into effect. Thus the german representation of the workers inter- ests “Betriebsrat” may be competent as a shop/factory/works council all in one or three or more councils are needed for any single part. Cf. for instance Weidenkaff in: Palandt (Ed.), Bürgerliches Gesetzbuch, 2011, Einf v § 611 margin no. 14; Klebe et. al., Betriebsverfassungsgesetz, 2011, § 1 margin no. 1-2.
5 Compare Kuhn, Die deutsche Arbeiterbewegung, 2004, p. 158; Müller- Jentsch, Gewerkschaften und Soziale Marktwirtschaft seit 1945, 2011, pp. 77-79.
6 Müller-Jentsch, loc. cit., p. 78.
7 Same, loc. cit., pp. 80 ff.
9 Annotation: In combination with the unions, this institution forms the system of the duale Interessenvertretung ( dual representation of inter- ests), which constitutes one major specialty of German and Austrian labour law; cf. among others Hermann et. al., Betriebliche Interessen- vertretung in Österreich, 2006, p. 1.
10 See § 76 and § 76a BetrVG.
11 Cf. Klebe et. al., loc. cit., 2011, § 76 margin no. 7.
12 See §§ 111-112 BetrVG; the decision by itself can only be challenged in court within a short limitation period if good legal reasons are indica- tive that the chairperson exceeded her discretion..
13 For the role of the mediator in German law see at first hand §§ 1 II, 2 V 2 Mediationsgesetz (Mediation Act), § 2 III No. 4 Rechtsdienstleistungsgesetz (Legal Services Act), deepening Kracht in: Haft et. al. (ed.), Handbuch Mediation, § 12 margin no. 5-6.
14 According to § 113 III BetrVG an operational change applied without negotiation with the »works« council contains the risk of a lot of law-