Csilla Kollonay-Lehoczky, How international standards can guarantee the right to collective bargaining in:

Wolfgang Däubler, Reingard Zimmer (ed.)

Arbeitsvölkerrecht, page 154 - 165

Festschrift für Klaus Lörcher

1. Edition 2013, ISBN print: 978-3-8487-0674-7, ISBN online: 978-3-8452-4921-6,

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How international standards can guarantee the right to collective bargaining Csilla Kollonay-Lehoczky Introduction This paper is to deal with the freedom of collective bargaining under the ILO and Council of Europe standards in the light of the new provisions of the 2012 Hungarian Labour Code. One of the most important declared goals of this new legislative product was to increase the role of the contractual freedom of the parties in setting the terms and conditions of employment. The preparatory political documents emphasized the importance of the increase of the “individual and collective autonomy”. While this phrase is in itself misleading, since individual and collective autonomy are opposites in labour law, and not a friendly couple or two elements of the same term, the main problem is that the law has clearly failed to fulfil its promise regarding the increase of collective autonomy in the regulation of employment. Instead, it significantly limits the freedom and potential reach of collective agreements and trade union autonomy. Upon the fast adoption of the new Labour Code trade unions tried to find support at international level against several new provisions at least suspect of violating international standards. The purpose of this note is to check how international institutions might be expected to protect allegedly violated economic human rights. The paper first gives a brief overview of the concept of representativity and its special significance for the post-communist countries. Then it examines how the most important criteria of promoting collective bargaining, under the representativity requirement are assessed under ILO Convention 98 and Article 6 of the European Social Charter. Do international regulations really help? ILO and the European Social Charter The economic crisis has speeded up the tendency that in the last three decades has already been infiltrating slowly, gradually into the world of labour and also in the area of social and economic human rights protection. The pressure to cut back, circumvent or simply abolish the achievements of one hundred years’ development; undisputedly the effect of the globalization putting on the table the clear demand I. 1. for the approximation of the higher standards of the developed labour markets to the lower ones in the developing countries1 – known, as a trend, for many years as “regulatory competition”. One of the most worrying results is the slow, but also invasive attack on international standards of economic human rights, first of all labour rights laid down in the UN and Council of Europe conventions and other documents. The international expert bodies assessing compliance with such standards have increasingly been confronted with the pressure and dilemma: when states are under the heavy and sudden pressure of crisis coupling to the constant competition by cheap labour markets of developing countries, whether the insistence on former or, perhaps, even steadily increasing standards is the right way to follow or, oppositely, “understanding the realities” and stepping back in requirements is the prudent way to proceed. On the surface there seems to be a difference or even opposite move between the world-wide standards established by the ILO based on tripartite support and the European standards required under the European Social Charter. The 1990s have seen the European Social Charter to get extended and reinforced in the form of amending protocols (with special regard to the Collective Complaint protocol) that process culminated in the 1996 adoption of the Revised Social Charter (that entered into force in 1999). On the other hand the ILO at its International Labour Conference 86th Session Geneva, June 1998 when has adopted the Declaration on Fundamental Principles and Rights at Work as an expression of the commitment by governments, employers' and workers' organizations to uphold basic human values. This declaration apparently enhances the status of those core labour standards – at the same time it might be considered as a step backwards regarding those fundamental standards that are not included in the list of the core principles or the catalogue of the core conventions2. As one eminent but not uncoupled opinion critically mentions, ILO and other specialized institutions (WHO, UNESCO etc.) of the UN have “slipped back to those of the first nineteenth century social philanthropists to prevent the spread of epidemics, prohibit forced labour and limit child labour”.3 The opposite trend has an explanation of the inherent differences between a regional and a global convention, considering the difference in finding a common denominator within a narrower group of countries with somewhat common cultural and economic background.4 The slight difference in consistency and compliance 1 Similar approximation claim emerged with the astronomic growth of the informal, precarious part of the labour market. 2 Human rights v. international standards paper. 3 See: Alston, P., „Core Labour Standards“ and the Transformation of the International Labour Rights Regime, Eur. Journal of International Law (Vol. 15, 2004) followed by wide debate. 4 The expert committee supervising the compliance with obligations by governments under the ESC has been also coping with challenges in the wake of the increase of ratifications by a number of East European and former Soviet Union countries. How international standards can guarantee the right to collective bargaining 155 is connected, too, to the different ratification and supervision system of the Council of Europe and the ILO conventions5. Concept of representativeness and its special significance in the post-transition countries Concept of representativeness Representativeness or representativity6 is an overly broad and complex concept, gaining importance in labour law history with the legislative acknowledgement of the freedom of association, trade unions and, in particular, of binding collective agreements. It is complex not only because of the diverging interpretation of the content but also because of the multiple planes of its operation and the changing criteria according to the level of functioning. It has international (even supranational7) as well as national (also multilayered) relevance. International context – i.e. entitlement to use the institutionalized international channels8 for being consulted, be involved in supervising bodies, to intervene, submit comments, complaints or proposals – is not within the scope of this paper9. Who is a trade union representing workers? Who is entitled to bargain and contract collectively in the name of the workers? These are the questions to be answered for a national jurisdiction in order to comply with the international obligations to protect, support and promote the freedom of association and collective bargaining. Representativity means the mutual influence between the represented and the representative that might turn on different and relevant factors. While it means a substantive and qualitative element (its directness and intensity changes with the level of representation), it has to be demonstrated by quantitative indicators that also necessarily (and mostly) change with the level of representation. Dependent on the national trade union culture and legal framework representation is ranging from national level bipartite or tripartite consultation, industry or company level (occasionally even plant level) negotiations. 2. a) 5 With the main exception of Convention C 102 on social security standards. 6 The two forms are used alternatingly, as synonims, both in the legal documents and in the literature. 7 Eminently in Articles 154-155 of the TFEU. 8 ILO Const. 26, ESC, TFEU article 154. According to Article 14 of the ILO Constitution, the Governing Body should fix the agenda of the Conference after considering the suggestions made by governments of any of the Member States. 9 The ESCR established that, for the purposes of the collective complaints procedure, representativity is an autonomous concept, not necessarily identical with the national notion of representativity (Complaint No. 9/1999, Confédération Française de l’Encadrement “CFE- CGC” v. France, decision on admissibility, paragraph 6). 156 Csilla Kollonay-Lehoczky The status of being a trade union and representing workers inherently requires substantive representativity, nonetheless not all national legislation sets formal requirements. Under several national jurisdictions, such qualification is relevant only when certain privileges or freedoms are attached to being acknowledged as a trade union. The most important privilege – the core of representativity is – to negotiate for and to conclude collective agreements, especially if they are binding for others and not only for the members of the negotiating trade union. In such cases state intervention is not only acceptable but also necessary10. The special significance of representativity for the CEE countries. Trade unions in the transitional countries arrived to the post-communist era with some specific features inherited from the centralized state economy. Two of them deserve mentioning here due to their relevance for the subject of this paper. The weakening position of trade unions The decline of the centralized one party system of the communist regime has opened formerly unknown freedom of organization and trade union pluralism, making the establishment of a trade union extremely easy11. In lack of skill and self-restraint in exercising classic freedoms the broad opportunity has turned into a challenge. It resulted in excessive multiplicity and fragmentation as well as destructive political rivalry in the trade union movement, especially among old and new unions.12 This challenge coupled with ambivalence towards the discredited trade unions and radical decrease of membership numbers. The emerging difficulties in several transition countries lead to inappropriate trade union practices, such as overstating membership numbers, increasing the number of protected officials and the scope of their protection, as steps of self defence. This provoked, on the other hand, state intervention and legislative steps aimed at restraining the rights of trade unions – frequently justified on the surface b) (1) 10 Hepple, B., The Future of Labour Law, Comp. Labour Law Journal, Summer 1996, p. 633; Supiot, A., Beyond employement, OUP, 2001, p. 98. 11 One of the extremes (even if not unique in the region was the Association of Citizens Act, 1990 of the Czech Republic making possible the foundation of a trade union by three persons. See: Social Dialogue – The Czech Success Story. In: Focus Programme on Strengthening Social Dialogue WP 4. p.2. In Hungary the requirement of a minimum of 15 is more, but not qualitatively for a trade union. 12 See from the author: Trade Unions Facing the Challenge of Privatization in Europe. New Strategies. In: Economic and political Changes in Europe. Implications on Industrial Relations. Cacucci Editore, Bari (Italy) 1993 pp. 309-340. How international standards can guarantee the right to collective bargaining 157 by promoting genuine trade union representation, while in reality, depriving trade unions from opportunities that would promote collective bargaining. In such a situation the regulation of “representativeness” becomes indispensable with special regard to the transfer of the formerly monopolized rights and privileges to the multitude of new trade unions present at the workplace. Some rights have to be guaranteed to all, while others might require representativity. The imbalanced allocation of trade union activity and collective bargaining In the past, the lack of genuine bargaining power restricted trade union activity to workplace level consultation, being rather an offshoot of management than an opposite partner to it. Proceeding along old routines, trade union activity concentrated at company level resulting in an extremely decentralized collective bargaining system taking place predominantly at company level. This vulnerable situation makes the regulation on collective contracting capacity particularly significant and balanced representativity rules – neither releasing anarchy nor eliminating bargaining by too strict requirements – have become a huge challenge for the post-transition legislature. Skipping sectoral and industry level bargaining (that is the typical level of bargaining in classic industrial democracies) the other pole of active industrial relations has been the national social dialogue. The two poles (company and national level) have been rooting in the same past traditions preserving at national level the strong corporative character of the social and industrial relation system of the former communist countries. In spite of its negative image, it could play even a positive role in the first years of transition13. In spite of the encouragement and support provided by the European Union to the new member states, sectoral bargaining could not be a success. While assistance and incentives is vital for changing this unsound structure, to establish and confirm sectoral bargaining14 the way of simply abolishing tripartite consultations, as did the Hungarian government, and making representation difficult for company unions is not supporting creation and consolidation of sectoral unions. (2) 13 Iankova, E., Social Partnership After the Cold War, in: Brady, J. (ed.), Central and Eastern Europe, Oak Tree Press, 1997, pp. 33-37. Participatory forms of employee representation seem to be suitable for the transitory democracies (or “transformative corporatism” as Iankova puts it) because they need and tolerate state involvement without damaging the natural characteristics of the representational form. Later, see: a 2003 Eurofound report, whose author claims that this tripartite cooperation might be a “valuable asset” new Member States bring into the EU. See: “Industrial relations in the candidate countries” http://www.eiro.eur 14 The European Union has done a lot to promote sectoral bargaining, nonetheless it could not reach a breakthrough. 158 Csilla Kollonay-Lehoczky International standards under ILO C 98 and ESC Art. 6 § 2 The freedom of collective bargaining standards under ILO and ESC This part overviews the examination of compliance of national laws with ILO Convention no. 98 and article 6 (6.2 in conjunction with 6.1) of the European Social Charter regarding the guarantees of the right to collective bargaining without undue limitation. Focussing narrowly on the right to collective bargaining, the freedom of association and its eventual representativeness requirement – while a pre-requisite for the right to collective bargaining – will not be examined here, bearing in mind, that the failure of a country to comply with the freedom of association would logically entail the negative conclusion regarding compliance with the right to collective bargaining.15 Thus, ILO C87 and ESC article 5 are not dealt with in this part. Similarly, Article 8 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) also guarantees the right to organize and the right to strike, will not be dealt with, since its case law reflects almost no attention paid to representativity for collective bargaining16 At the same time this narrow scope of examination permits a summary comparison between the regional and global guarantees: the requirements under the ESC and the ILO. ILO conventions 87 and 98 are considered as „uniquely authoritative”17 in relation to the freedom of association, primarily by their very high level of acceptance (ratification)18 among the countries of the world. The European Social Charter, as a regional human rights convention, is not less highly ratified, however, it covers a broad scale of economic and social rights, including the “right to freedom of association”19 and the right to bargain collectively (in its hard core articles 5 and 620) as two specific rights. This determines the difference in the details of the analysis: it is necessarily more detailed in the case of the ILO conventions. 3. a) 15 This is explicitly the logic of the assessment under the ESC. See: Harris, D./Darcy, J., The European Social Charter, Ardsley, N.Y. 2001, p. 101, also recently Slovakia, Cycle XIX, p. 16 CESCR reports, as a matter of course, concentrate on the freedom of association and the right to strike. Reports of the last eighteen years include only one comment on representativity: on the widely known problem of French representativity rules impeding the bargaining rights of small size unions. Report on the twenty-fifth, twenty-sixth and twenty seventh session, Supplement 2. 2001, Published 2002 sections 867, 878 vType=18&docType=36. 17 Creighton, B., Freedom of Association, in: Blanpain, R./Engels, C. (eds.), Comparative Labour Law and Industrial Relations in Industrialised Market Economies, p. 286. 18 C87 and C98 are ratified by 152 and 163 (respectively) out oft he 183 ILO member states.. 19 The sophisticated distinction between “freedoms” and “rights” in the human rights literature might raise questions about this wording. 20 Out of the 45 ratifying countries only Andorra, Turkey and Greece have not ratified article 6. How international standards can guarantee the right to collective bargaining 159 On the other hand the specific substantive and procedural attributes of the Charter make some slight difference in the nuances and emphasis with regard to the conclusions on the subjects that are commonly analysed. Positive – negative approach So that collective bargaining could fulfil its function the mechanism facilitating such procedures and maintaining the equilibrium between the parties should be framed by the law, together with the possible support, facilitation in technical terms of the negotiations. In this respect there is a difference, even if just of nuances, between the ILO and the ESC document’s negative and positive approach: hidden in the distilled and diplomatic wording of the documents, the ILO standards are rather focussing on freedoms while the Charter on positive obligations. ILO C98 art. 4 and ESC 6§ 2 are worded almost identically. Both documents establish an apparently positive obligation of the state to take measures “appropriate to national conditions”(ILO)21 or “where necessary and appropriate” (ESC) to promote22 the (full development and utilization of) machinery for negotiations between the parties with a view to the regulation of terms and conditions of employment by means of collective agreements. It is also similarly established under both documents that if the spontaneous development of collective bargaining is sufficient, no measures of the states are required, otherwise measures should be taken as prescribed in article 4 of C98 and in article 6§ 2 of the ESC. It is emphasized by their supervisory bodies, that the free and voluntary character of collective bargaining should be preserved.23 However, the “freedom-approach” stops the CFA from declaring violation of the Convention if national law remains silent or not effectively promoting the collective bargaining machinery. Instead, it emphasizes, that “[n]othing in Article 4 of Convention No. 98 places a duty on the government to enforce collective bargaining by compulsory means with a given organization; such an intervention would clearly alter the nature of bargaining.”24 On the other hand the ECSR declared non-compliance of Bulgaria with article 6§ 2 “on the ground that it has not b) 21 This might be the reason for the abstention of both the US and Canada from ratification, while C087 – using rather the vocabulary of immunities from state interference – has been ratified, at least by Canada. 22 Harris-Darcy (fn. 15), p. 89 calls attention to the different introductory wording to Article 5 – “ensuring or promoting”. 23 ECSR Conclusions, Cycle I, Statement of Interpretation on art. 6.2, p. 35. 24 CFA Digest 2006, 927. See a critical analysis on this “negative” approach by Creighton, p. 327-328. 160 Csilla Kollonay-Lehoczky been established that sufficient measures to promote collective negotiations were taken”.25 Dialogue between employers and employees promotes collective agreement and its promotion is an indispensible part of measures aiming at facilitating mechanisms of collective negotiations. Under 6§ 1 of the ESC the Parties undertake, with a view to ensuring the effective exercise of the right to bargain collectively, to promote joint consultation between workers and employers from company to national level. C 98 does not set such a requirement, and Recommendation R94 on Cooperation at the Level of the Undertaking (1952) explicitly limits its scope to matters outside the scope of collective bargaining. In contrary, the ECSR considers such consultations indispensable for the effective exercise of the right to collective bargaining and if their mechanism is not established, if they do not cover all relevant issues, it finds a failure of complying with the obligations regarding the right to collective bargaining.26 The corporatist style cooperation between the management and employee representation (and similarly national level cooperation) where the representative organizations of the employees became rather a part of the management than genuine representatives proved difficult to overcome. Multiplicity of trade unions Independence as well as mass-power are requirements for strong trade unions and these might collide with trade union pluralism, that is inseparable from the freedom of association. Excessive pluralism, multiplicity might be detrimental to their representative role, even their independence and, most importantly to their collective bargaining function. This has been well illustrated by the CEE countries’ path of the trade union movement. Both the ESC and the ILO bodies’ case law accept that establishing representativity criteria for collective bargaining is not violating the guaranteed right and freedom, especially when the negotiated conditions would be extended to employees who are not members of the unions concluding the collective agreements. The standards for representativity criteria are also similar. Representativity criteria should be pre-established (under the ESC prescribed by law), it should be objective and reasonable so that to prevent abuse by employers and governmental arbitrariness27. c) 25 Conclusions, 2010, p. 185. 26 Conclusions 6§ 1: Croatia Cycle XIX, Bulgaria 2010,. 27 Conclusion XV-I. Belgium, p. 79, Digest 348. How international standards can guarantee the right to collective bargaining 161 Privileging the “most representative” organization is an issue for national (international) representation28 and might be surrounded by the question if it means unconditional authorization for extension of collective agreements at sectoral level. At company level the numerical membership requirements couple with the principle of permitting small trade unions to bargain at least for their own members, and, more importantly for our topic with regard to the declining trade union membership in the CEE countries, not connected to membership criteria, rather to “acceptance” by the majority of the employees. Importantly, under the ILO standards both exclusive collective bargaining rights are acceptable if there is one most-representative trade union present, or systems where it is possible for a number of collective agreements to be concluded by a number of trade unions within a company are both compatible with the principles of freedom of association29. It has to be emphasised, though, that exclusive rights for trade unions without demonstrating majority acceptance at the workplace, especially where there are more than one trade unions, is not included in this interpretation. One significant element seems to differentiate the ESC and the ILO systems on conformity of representativeness criteria with the freedom of collective bargaining: the requirement of judicial review. While without guaranteeing this opportunity a Party State is not in conformity with the requirements under the ESC30, such conformity criteria is not set by the ILO case-law under C98. The Hungarian Labour Code and trade union rights The new Hungarian Labour Code – besides decreasing labour standards and increasing managerial power in utilizing the hired labour force – radically changed the norms on trade unions and collective bargaining. While strongly asserting the intention to increase collective autonomy of the parties, the legislature has significantly cut back the opportunities to fulfil trade union functions. The economic intention to enhance economic freedoms coupled with a view of trade unions as organizations potentially disruptive for the economy. Thus the new law has radically cut back their former status, their rights to consultation and information, their rights to check the observance of labour regulations. This diminution could already weaken the capacity for efficient collective bargaining (and raising questions about compliance with 6§ 1 under the ESC), how- 4. 28 Digest, 364, Conclusions XVII – Belgium, p. 35. 29 Digest 950, 329th report, case 2136. 30 Conclusions 2010, Albania, Art. 6§ 1,. 162 Csilla Kollonay-Lehoczky ever, the crucial change has taken place in respect of the representativeness of trade unions and their power to engage in collective bargaining negotiations. In the past31 rules on representativity were simple and genuinely reflecting the support of a trade union, while correctly accommodating the eventual (in fact, quite frequent) presence of multiple trade unions at the workplace. The one employerone collective agreement rule required that to qualify for concluding a collective agreement the workplace union had to gain the support of 50 per cent plus one vote at the works council elections. In case of trade union plurality at the workplace, this majority had to be obtained jointly. Besides differentiated and balanced regulation provided for situations of lack of agreement, for an exceptional case of lack of consensus among the unions, the law permitted for one union to negotiate alone with the employer if this trade union alone possessed more than 65 per cent of the votes. Since this was very rare case, the trade unions at the workplace were motivated to come to a compromise and consensus. The membership was not directly a qualifier for representativeness (except public service, see on this here below). The new norms of the 2012 Labour Code have entirely abolished the term “representativity” from the Code and instead, have set a strict numerical membership requirement: trade unions having at least ten per cent of the employees at the company have the right to initiate collective negotiations. They may negotiate for a collective agreement with an erga omnes effect for the whole company, regardless to their effective support within the workplace, while if there are multiple unions, each of them having less than ten per cent of the labour force as their members must not negotiate with the employer, even if their total (aggregate) members constitute above half of the staff.32 While in the past, if trade unions could not get staff support above fifty per cent, they were permitted to negotiate with the employer for a collective agreement, under the condition that the agreement was submitted to a referendum and was confirmed by the majority of the labour force to whom it was to apply. Under the new norms – hardly in compliance with the freedom of collective bargaining – such an option is excluded, even if the employer would be ready to sit to the bargaining table. Any departure from the provisions on the right to conclude a collective agreement is prohibited by the Labour Code. Furthermore, while trade unions are prevented from qualifying together (by adding up their memberships), if more than one trade union qualifies by reaching the ten per cent membership, only joint conclusion of the collective agreement is possible. Thus, minor trade unions, once qualified, might block the conclusion of a collective agreement, regardless to the support of it by major unions and their membership. This solution raises questions about compliance with the permitted representativity requirements under the standards of both international systems. 31 Under Act XII of 1992 on the Labour Code in force until July 1, 2012, article 33. 32 7-8 or even more trade unions at the workplace are not unique, even if not regular. How international standards can guarantee the right to collective bargaining 163 The ECSR will examine compliance with articles 5 and 6 not before 2014. At the same time the Committee of Experts has already assessed the new Hungarian regulation and came to a conclusion that is stunning for the domestic expert. The Committee noted in its 2012 report that the Government’s indication that trade unions would no longer need to represent 65 per cent of the workforce in order to be able to engage in collective bargaining. This former threshold, set for extreme cases only (see above), was misleadingly communicated to the CEACR in 2010, by a new government intending to change the former labour regulation. Now, we can read, that the “Committee notes with satisfaction”33 the new regulation34, that in reality will bash collective bargaining in Hungary, with the exception of a few large companies with strong trade union traditions. This case, just by chance, calls attention to the importance of increasing the independent, substantive and procedural character of the international supervising bodies on economic and social human rights. While the ECSR has already a stronger judicial character in comparison to global bodies, this might be further increased by genuine political intention in the Council of Europe and, similarly, the supervisory system of the ILO that is coping now with difficulties deriving from its tripartite character might, when overcoming them, improve its deserved high international prestige and authority and invalidate all questions about the future of global standards. 33 Direct Request (CEACR) – adopted 2012, published th ILC session (.). 34 Section 276(2) of the newly adopted Labour Code. 164 Csilla Kollonay-Lehoczky Völkerrechtlicher Schutz gegen Grundrechtsverkürzungen im Namen der Religion Ninon Colneric Einleitung Die Kirchen betrachten die im kirchlichen Dienst Tätigen als Mitglieder einer religiösen Dienstgemeinschaft, erwarten von ihnen Loyalität und knüpfen die Beschäftigung außer bei pastoralen und katechetischen Aufgaben in der Regel auch bei erzieherischen und leitenden Aufgaben1 oder sogar grundsätzlich bei jeder Art der beruflichen Mitarbeit2 an die Mitgliedschaft in ihrer Religionsgemeinschaft. Diese Anforderungen treffen immer häufiger Menschen, die keiner oder der „falschen“ Konfession angehören. Hinzu kommt insbesondere bei der katholischen Kirche, dass die Kluft zwischen ihren Wertvorstellungen und denen des gesellschaftlichen Mainstream wächst. Das alte Problem, inwieweit Arbeitnehmer eine Verkürzung ihrer durch nationales und internationales Recht garantierten Grundrechte3 im Namen der Religion hinnehmen müssen, gewinnt damit zunehmend an Brisanz. Die Rechte der Religionsgemeinschaften sind in Deutschland ausgeprägter als in anderen europäischen Staaten.4 Vor diesem Hintergrund erscheint es lohnend, zu analysieren, wie das internationale Arbeitsrecht mit dem Spannungsverhältnis zwischen den individuellen Grundrechten und den Rechten der Religionsgemeinschaften umgeht.5 Die folgende Untersuchung beschränkt sich auf die Europäische Konvention zum Schutz der Grundfreiheiten und Menschenrechte (im Folgenden: I. 1 Art. 3 Abs. 2 der von der Vollversammlung der Deutschen Bischofskonferenz am 22.9.1993 verabschiedete, zuletzt durch Beschluss der Vollverbandes der Diözesen Deutschlands am 20.6.11 geänderte Grundordnung des kirchlichen Dienstes im Rahmen kirchlicher Arbeitsverhältnisse. 2 § 3 Abs. 1 der vom Rat der EKD am 1.7.2005 erlassenen Richtlinie des Rates über die Anforderungen der privatrechtlichen beruflichen Mitarbeit in der Evangelischen Kirche in Deutschland und des Diakonischen Werkes der EKD (ABl. EKD 2005 S. 413). 3 In den internationalen Konventionen wird zum Teil nicht der Begriff „Grundrecht“ benutzt, obwohl es sich der Sache um ein Grundrecht handelt. Der Begriff „Grundrecht“ wird hier deshalb in einem weiteren Sinne benutzt. 4 Georg Bier, Ordinarius für Kirchenrecht und Kirchliche Rechtsgeschichte, zit. bei Müller, Gott hat hohe Nebenkosten – Wer wirklich für die Kirchen zahlt, Köln 2013, S. 79. 5 Zum nationalen Recht siehe Däubler, Das kirchliche Arbeitsrecht und die Grundrechte der Arbeitnehmer, RdA 2003, 204.

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Die wachsende Bedeutung des internationalen Arbeitsrechts schlägt sich in vielen Bereichen nieder: Tarifautonomie und Streikrecht werden durch die Rechtsprechung des EGMR mitbestimmt, die ILO-Übereinkommen stellen einen Mindeststandard dar, der auch in einer Wirtschaftskrise nicht unterschritten werden darf. Nicht jeder nationale Gesetzgeber und nicht jedes Gericht hat dies aber bisher erkannt. Von daher ergeben sich viele Kontroversen, in Deutschland u. a. bei der Kündigung kirchlicher Mitarbeiter und bei der überlangen Dauer gerichtlicher Verfahren deutlich werden.

Die insgesamt 35 Autoren sind in der Wissenschaft, aber auch in internationalen Organisationen, in Ministerien und als Richter tätig. Der Band verbindet Theorie und Praxis; als Leser bekommt man nicht nur Stoff zum Nachdenken, sondern nicht selten auch ganz konkrete Handlungsanleitungen. Bislang gibt es kein vergleichbares Buch in der rechtswissenschaftlichen Literatur.