Noerr prevents trade union interference in aviation outsourcing

Noerr successfully represented Air Berlin before Berlin and Hamburg Labour Courts in a fundamental question of German collective bargaining law. The cases were about trade union interference with an employer’s market behaviour and, in particular, the influence trade unions may have on entrepreneurial decisions in outsourcing. With today’s withdrawal of the appeal by the Vereinigung Cockpit (VC) association, the December 2017 decision of Berlin Labour Court has become non-appealable (case number 31 Ga 13855/17). The court had dismissed an application by VC for a preliminary injunction against the airline. The pilots’ trade union therefore failed with its claim that Air Berlin be prohibited by the court from operating certain domestic flights and flights within Spain with cockpit staff of (former subsidiary) Luftverkehrsgesellschaft Walter mbH (LGW).

VC holds the view that these flights may be operated only by cockpit staff subject to Air Berlin collective agreements, referring to a collective agreement regarding the definition of business areas, the Tarifvertrag Geschäftsfeldabgrenzung (TV GFA), which contains restrictions with regard to the operation of aircraft and flights of Air Berlin and its partner airlines. Air Berlin believes that this collective agreement is invalid partly because it breaches the Act on Collective Agreements (Tarifvertragsgesetz – TVG) and had terminated that agreement. Berlin Labour Court concurred with the reasoning of Air Berlin that the VC claim was unfounded. If the Labour Court had granted the claim of VC, the retention of the slots in particular would have been at risk. The appeal initially filed by VC with Berlin-Brandenburg Higher Labour Court has now been withdrawn today by VC prior to the hearing after receipt of the reply from Noerr.

Air Berlin also succeeded with Noerr before Hamburg Labour Court. In the Hamburg proceedings, which had been initiated prior to the insolvency of NIKI, VC sought interim relief against Air Berlin to prohibit them from carrying out NIKI flights to and from Hamburg with NIKI staff, arguing that under the TV GFA these flights should be carried out by Air Berlin directly and not by any other company. Hamburg Labour Court agreed with the reasoning of Air Berlin that the Hamburg court lacked local jurisdiction since the TV GFA does not contain any collectively agreed standards but mere agreements under the law of obligations. Following the referral, Berlin Labour Court (case number 29 Ga 15054/17) also dismissed the application in December 2017, stating that there were no apparent grounds for such far-reaching interference.

According to Noerr lawyers Hans-Christoph Schimmelpfennig and Stephan Vielmeier the case also is of great interest to other industries with respect to collective bargaining law as it is based on a highly controversial question of law and there is no relevant case law so far. “Ultimately, this is about the question of what influence trade unions may have on outsourcing decisions by companies,” explained Schimmelpfennig. “The cases showed that such agreements in any event may not have the effect of rules of law but can only be ordinary agreements under the law of obligations.”

Advisors to Air Berlin PLC & Co Luftverkehrs KG.: Noerr LLP

Dr Hans-Christoph Schimmelpfennig (Munich), Dr Stephan Vielmeier (Hamburg)