In Germany, the pandemic-induced move to homeworking is posing new challenges not only for employers and employees but also for trade unions. Government-imposed restrictions on public assembly have curtailed traditional forms of industrial action. So trade unions have had to shift strikes from the streets to the virtual realm, a trend that will occupy courts and employers long after the pandemic is over.
What is 'virtual industrial action'?
While traditional forms of industrial action such as strikes and rallies rely primarily on the physical presence of the participants, virtual forms aim to harness the advantages of the digital world. For example, electronic means of communication not only allow unions to reach more people but also to get supporters to take action more quickly.
We look at the more common forms of virtual industrial action below.
Strike action aims to publicise an issue and exert pressure on the employer to meet the union’s demands.
In the real world, unions usually generate attention by organising public rallies or other forms of protests such as flash mobs (gatherings of union representatives and other protesters on company premises).
With a large proportion of employees working from home and the restrictions on close contact during the lockdown, unions have started to use videoconferencing applications, and video-sharing and social media platforms, to enable them to publicise the underlying issue to a large number of users both inside and outside the company.
For example, a German union recently livestreamed a cooking event as a form of virtual strike. In another instance, homeworkers modified their email out-of-office response, with the outgoing message stating that the employee was on strike and setting out the union’s main demands.
Virtual boycotts and defacements
Virtual boycotts are where unions use social media platforms or instant messaging services to encourage customers and business partners to stop purchasing goods or services from the employer or to break off their business relationship. Union members and supporters could also team up to give a product or service bad reviews on a rating site or to downvote employer content on a video-streaming platform.
‘Defacement’ is where the employer’s website is changed (in a derogative way) without authorisation. One of the first instances of defacement in Germany happened in 1998, when a group of scientists from Berlin replaced research-related data on their employer's website with dollar signs. In other cases, social media accounts of companies have been hacked or fake accounts created to spread negative content about the employer.
Denial-of-service (DoS) attacks interfere with the employer’s IT infrastructure by, for example, bringing down its website by overloading it with traffic or its email server by flooding it with masses of prefabricated emails. These tend to be carried out by specifically designed bots rather than individual human users.
One of the earliest DoS attacks in Germany occurred in 2001 when political protesters attacked the booking website of an airline. The protesters used a bot that called up the website more than one million times, eventually putting it offline.
Legal background in a nutshell
Although it is not expressly permitted under German law, German courts recognise the right to take industrial action as part of the freedom to form unions. This applies at least to traditional forms of industrial action such as strikes and a lockout by the employer. For other forms of protest, such as picketing, employees may also rely on freedom of speech and freedom of assembly.
However, German courts have been willing to extend yet further the scope of what is considered lawful industrial action. In 2007, the German Federal Labour Court permitted a ‘supportive strike’ (ie industrial action by employees not directly affected by dispute) and, in 2009, a union-organised flash mob was found to be ‘not necessarily inadmissible’ depending on the individual circumstances.
Despite their leniency, the German courts may, however, not regard virtual forms of industrial action as legitimate because of the participation of third parties, the disruption of the employer’s business (in the case of a DoS attack) or the negative publicity (in the case of a virtual protest).
If certain forms of virtual industrial action are either unlawful in the eyes of the courts or not protected by the freedom of association, assembly or speech, they have to be judged based on the principles of criminal and tort law. Thus, attacks on employer websites or other communication systems, in particular using malware, are more likely to be regarded as an illegal sabotage of IT systems, even if they serve to make the employer meet the union’s demands.
If the courts hold certain forms of virtual industrial action to be lawful, employers may not be able to defend themselves as effectively compared to traditional forms, for which they can use lockouts, site closures or strike premiums. However, certain forms of virtual industrial action may infringe certain rights of the employer. For example, defacing a website unlawfully infringes the employer's property rights.
In essence, virtual actions may only be permissible if they respect the fundamental rights of the parties involved and the infringement of the employer’s rights is proportionate. Also, employees continue to be bound by the employer's social media guidelines, which may include a ban on expressing opinions about the employer via social media.
To prevent employees taking action that may infringe its rights, the employer can seek an immediate court order.
Outlook and conclusion
Given the shift to home and digital working, virtual industrial action will likely gain momentum in the future. Determining whether any such action is permissible or can be successfully challenged isn’t easy. However, if it involves sabotaging the employer’s IT systems, it is likely to be unlawful. As such, the employer has a good chance to take successful legal action against the perpetrators.