The employer operates a dispatch and logistics center in a commercial area out of town. The employer’s premises include a company building and a large parking lot, which is intended for use by the employees.
In September 2015, the employer was subject to strike measures for two days. On both days, the responsible trade union set up tables on the car park in front of the company’s main entrance and gathered its representatives and striking employees there. They distributed flyers and demanded employees who showed up at work to participate in the strike. Access to the employer’s premises was not hindered by the striking workers. Such action was repeated in March 2016. The employer filed a lawsuit at the labour court in order to prohibit such strike mobilization by the trade union for the future.
However, on 20 November 2018, the Federal Labor Court has ruled that the strike mobilization on the company car park in front of the company premises was lawful. The consideration of both the fundamental rights of the employer and the striking trade union results in the employer having to accept a short-term impairment of his property. Due to local circumstances, the trade union could only communicate with the striking employees on the company car park and this was the only place where they could try to influence employees who appeared at work. In this case, there were no other possibilities for the trade union to call employees to strike. By implication, this means that where there are such other possibilities, the trade union may not impair the employer’s property for the purpose of strike mobilization. The local circumstances will have to be assessed on a case-by-case basis.