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Who is Mister X? The anonymous claim for performance of a collective agreement


Martin Biebl

Submitted by Firm:
Article Type:
Legal Update

Judgment of the Federal Labour Court of 13 October 2021 in Case No. 4 AZR 403/20

If a workers’ union brings an action for the implementation of a collective agreement, the affected union members do not have to be named in the action (at first). The Federal Labour Court (Bundesarbeitsgericht, BAG) again confirmed that employers must fulfil purely contractual obligations arising under a collective agreement. The workers’ union can enforce this right to implementation by way of a claim for performance, but it will be limited to those employees who are members of the union.

Facts of the case

At the heart of the case was a dispute between the Bayerischen Jounalisten-Verband e.V. (Bavarian Journalism Association) and the Bayerischen Rundfunk (Bavarian Broadcasting Service) about the implementation of collective agreements. The employer and the union had concluded various works agreements, which also allowed for rules concerning the remuneration of personnel with the same status as employees. The basis for this remuneration was to be a so-called fee framework for television and radio. In December 2016, the employer changed its remuneration practice and started paying personnel with the same status as employees a daily rate rather than in line with the agreed fee code. The union saw this as a breach of the collective agreement and sued the employer for implementation (application of the fee code) for all personnel with the same status as employees, without naming these persons in the suit. The union was unsuccessful before the two lower courts. The Courts held that the action was inadmissible because the claim did not specify the names of the affected persons.

The judgment

The union persisted and had at least some success on appeal. The BAG held that the employer breached its implementation obligations under the collective agreement. The per diem reporters had to be paid in accordance with the special fee code agreed in the collective agreement. The payment of daily flat rates contradicted the rule in the collective agreement. The union can bring an action to force compliance with the collective agreement. In bringing this action, which logically can only apply to union members, the union does not have to specify the names of the persons working for the employer to whom the suit relates. The union can – and this is the important part of the judgment –commence the action without naming names, i.e. to bring the action on behalf of an anonymous union member to enforce the rights of the members. This prevents the employer from learning who is a member of the union. In contrast to the judgment of the District Labour Court, the BAG held that the admissibility of the claim did not require the affected union members to be named in the main proceedings.

Consequences for practice

The judgment is particularly important from a procedural perspective as the right to claim performance has been recognised for a while. Since the union did not specify the union members in its lawsuit, the lower courts rejected the claim as inadmissible because it infringed § 253 (2) of the Code of Civil Procedure (Zivilprozessordnung). This provision is designed to allow the defendant, in the case of judgment against them, to readily recognise what they need to do to comply with the judgment. This is in line with the BAG’s long jurisprudence in this area. The Labour Court and the Regional Labour Court held that this requirement was not fulfilled because the claim only referred abstractly to “members of the union”. The lower courts found the employer would not know exactly what it had to do. The BAG relaxed this certainty requirement, making it possible for unions to bring an action for enforcement of a works agreement without revealing the names of the employees who fall under the collective agreement. As the employer is not allowed to ask an employee whether they are a member of a union, the union does not have to reveal the names of its members in any claim for performance.

Practical tip

Employers that are confronted with performance actions from unions have lost a procedural plea against the admissibility of the claim as a result of the judgment of the BAG. However, the BAG also assumes that the names of the workers will have to be provided to the defendant/employer sooner or later. The fact that the court affirms the claim for performance is not enough to directly result in payment entitlements for individual members. Employees who seek to invoke the more advantageous rules of remuneration, for example, must eventually reveal that they are a member of the union and fall under the collective agreement to benefit.


Martin Biebl