A strike is the collective, temporary work stoppage by employees to enforce demands against an employer. In Germany, the right to strike is protected by Art. 9 (3) of the Basic Law (Grundgesetz), but subject to clear conditions – in particular, a strike must be led by a trade union and be proportionate. Wildcat strikes without trade union backing are generally unlawful in Germany.
Definition: What Is a Strike?
A strike refers to the collective, organised and temporary refusal to work by a group of employees with the aim of enforcing demands against an employer – typically regarding wages, working hours or working conditions. The term describes the most powerful instrument of collective industrial action.
Under German law, the strike is recognised as a means of industrial action and is protected by the freedom of association (Koalitionsfreiheit) enshrined in Art. 9 (3) of the Basic Law (Grundgesetz, GG). This guarantees the right to form associations for the protection and promotion of working and economic conditions – and therefore encompasses the right to strike. At the same time, the right to strike is not unlimited: the Federal Labour Court (Bundesarbeitsgericht, BAG) has developed clear rules over decades governing when a strike is lawful and when it is not.
Legal Framework: The Right to Strike in Germany
Freedom of Association Under Art. 9 (3) GG
The right to strike in Germany is not an independent fundamental right, but rather an expression of the freedom of association. Art. 9 (3) GG protects the right to form trade unions and take collective action to enforce collective bargaining demands. Employees cannot waive this protection by contract – any such clause in an employment contract would be void.
Collective Agreements Act (TVG) and the Peace Obligation
The Collective Agreements Act (Tarifvertragsgesetz, TVG) governs the conclusion and effect of collective agreements. It gives rise to an important restriction on the right to strike: the so-called peace obligation (Friedenspflicht). During the term of a valid collective agreement, the parties to that agreement may not initiate industrial action on matters already regulated by it. The peace obligation ends when the collective agreement expires – at that point, negotiations on a new agreement can begin, with a strike as a last resort if necessary.
BAG Case Law: The Principle of Last Resort (Ultima Ratio)
In consistent case law, the Federal Labour Court has developed the so-called ultima ratio principle for industrial action: a strike is only permissible when all other means of negotiation have been exhausted. It must be the last, not the first, resort. A strike must also be proportionate – meaning the measures used must not be disproportionate to the objectives pursued (cf. BAG, judgment of 26.07.2016 – 1 AZR 160/14).
Requirements for a Lawful Strike
Not every collective work stoppage is automatically lawful. For a strike in Germany to be legal, the following conditions must be met:
Trade Union Backing
The strike must be called and led by a trade union with the capacity to conclude collective agreements. Spontaneous work stoppages without trade union backing – so-called wildcat strikes – are generally unlawful in Germany. The trade union assumes responsibility for the strike and may be liable for damages in the event of an unlawful strike.
Proportionality
The industrial action must be proportionate. The BAG examines whether the strike is suitable, necessary and appropriate to achieve the desired objective. Excessive or disproportionate industrial action may be unlawful.
Compliance with the Peace Obligation
As long as a collective agreement is in force, industrial action on the matters it covers is prohibited. A strike during the term of a collective agreement violates the peace obligation and is therefore unlawful.
Collectively Bargainable Objective
The objective of the strike must be a matter that can be regulated in a collective agreement – typically wages, working hours, holiday entitlements or similar working conditions. Political strikes (for example, against legislation) are generally impermissible in Germany.
Types of Strikes at a Glance
Warning Strike (Warnstreik)
The warning strike is the most common form of industrial action in Germany. It is short-term (often only a few hours or a single day) and serves to put pressure on the employer and signal the seriousness of the union's demands. Warning strikes typically take place during ongoing collective bargaining and are generally lawful.
General Strike (Generalstreik)
A general strike encompasses all or nearly all sectors of the economy. It is the most extreme form of collective industrial action. In Germany, a classic general strike is very narrowly restricted by law – political general strikes in particular are considered impermissible.
Wildcat Strike (unlawful)
A wildcat strike is a spontaneous work stoppage without trade union backing. It is generally unlawful in Germany. Employees who participate in a wildcat strike may face a formal warning or – in serious cases – even dismissal. The employer may also have claims for damages.
Sympathy Strike (Sympathiestreik)
A sympathy strike (also known as a solidarity strike) is a work stoppage in support of another trade union or group of employees involved in a separate industrial dispute. In Germany, it is permissible under certain conditions, provided it is backed by a trade union and is proportionate. In practice, it occurs rarely.
Lockout (Aussperrung) – The Employer's Countermeasure
The lockout is the employer's counterpart to a strike: the employer temporarily excludes employees from the workplace and withdraws their entitlement to pay. In Germany, a lockout is generally permitted as a response to a strike, but must itself be proportionate and is strictly limited by BAG case law.
Rights and Obligations During a Strike
For Employees
Employees have the right to participate in a lawful strike – even if they are not trade union members. Participation in a legal strike must not be a ground for dismissal. However, strikers must comply with the rules set by the trade union (e.g. conducting pickets peacefully, no sabotage).
Non-striking employees have the right to continue working during a strike. They must not be pressured or obstructed by strikers.
For Employers
During a strike, employers may:
- Continue operating the business with non-striking employees
- Use agency workers – but with an important restriction: since the reform of the Temporary Employment Act (Arbeitnehmerüberlassungsgesetz, AÜG) in 2017, § 11 (5) AÜG prohibits the deliberate use of agency workers to replace striking permanent staff
- Enter into or continue negotiations with the trade union
Employers may not:
- Dismiss employees for participating in a strike
- Pressure, harass or surveil striking employees
- Disadvantage striking employees (e.g. in promotions or bonuses) solely on account of their strike participation
What Happens to Pay During a Strike?
During a strike, the principle of "no work, no pay" applies: striking employees have no entitlement to their regular remuneration for the duration of the work stoppage. The employer is entitled to make a proportionate deduction from pay.
Trade union members typically receive strike pay (Streikgeld) from their union – a financial support payment that partially compensates for the loss of income. The amount varies by union and is generally around 60–80 per cent of the lost net earnings.
Employees who are not trade union members receive no strike pay. They bear the full financial risk of participating in a strike themselves.
For non-striking employees who are unable to work due to a strike (so-called "indirectly affected" employees) – for example, because the employer sends them home as no meaningful deployment is possible – the question of continued pay entitlement is complex and depends heavily on the circumstances of the individual case.
Practical Tips for HR Professionals During a Strike
A strike poses both operational and communicative challenges for HR departments. The following checklist helps you stay prepared:
Before the strike:
- Seek contact with the trade union and keep negotiation channels open
- Develop a contingency plan for operations (emergency operations, securing core functions)
- Check the legal situation: is the announced strike lawful? (peace obligation, notice requirements)
- Prepare internal communications: what are managers permitted and required to say?
During the strike:
- Do not intimidate or surveil striking employees
- Protect non-strikers and respect their free choice
- Only deploy agency workers where legally permissible (observe § 11 (5) AÜG)
- Document and correctly process pay deductions
- Ensure communication with customers and business partners
After the strike:
- Do not disadvantage striking employees
- Manage the return to normality constructively
- Analyse the causes of the conflict and derive long-term measures (e.g. improving feedback culture or conducting regular employee appraisals)
Frequently Asked Questions About Strikes
What is a strike?
A strike is the collective, temporary refusal by employees to perform work in order to enforce demands – typically regarding pay or working conditions – against an employer. In Germany, a strike must be backed by a trade union and be proportionate in order to be lawful.
When is a strike legal in Germany?
A strike is legal in Germany when it is backed by a trade union with the capacity to conclude collective agreements, the peace obligation has been observed (no current collective agreement covering the disputed matters), the ultima ratio principle has been respected (all negotiation options exhausted), and the objective of the strike is one that can be regulated in a collective agreement.
What is a wildcat strike?
A wildcat strike is a spontaneous work stoppage without trade union backing. It is generally unlawful in Germany. Employees who participate risk employment law consequences up to and including dismissal.
What happens to pay during a strike?
For the duration of the strike, striking employees lose their entitlement to pay. Trade union members receive strike pay from their union (typically 60–80% of lost net earnings). Non-members receive no strike pay.
Can an employer dismiss employees for going on strike?
No. Participation in a lawful strike is not a ground for dismissal. A dismissal on account of legal strike participation would be unlawful under consistent BAG case law. The position may differ in the case of an unlawful (wildcat) strike.
What is the difference between a strike and a lockout?
In a strike, employees refuse to perform work. In a lockout, the employer excludes employees from the workplace and withdraws their entitlement to pay. A lockout is the employer's countermeasure in industrial action and is permissible in Germany under strict conditions.
What is a sympathy strike?
A sympathy strike (solidarity strike) is a work stoppage in support of another trade union or group of employees in a separate industrial dispute. It is permissible in Germany provided it is backed by a trade union and is proportionate.
What is an employer permitted to do during a strike?
The employer may continue operating with non-striking employees, open or continue negotiations with the trade union, and – subject to the statutory restrictions under § 11 (5) AÜG – deploy agency workers. The employer may not, however, dismiss, pressure or disadvantage striking employees.
Conclusion
The right to strike is a central element of German collective employment law and is protected by the Basic Law. For HR professionals, it is important to understand the conditions for a lawful strike, know the employer's scope for action during industrial action, and respond in a prepared and legally sound manner – without escalating behaviour towards striking employees.
Strikes often arise where communication and trust within an organisation are lacking. A proactive feedback culture and regular employee appraisals can help identify and defuse conflicts early, before they escalate into industrial action.
Would you like more HR knowledge for your day-to-day work? Find well-founded articles on all relevant topics in HR, recruiting and employment law at aivy.app.
Sources
- Basic Law for the Federal Republic of Germany, Art. 9 (3) (Freedom of Association). Federal Ministry of Justice, 1949. https://www.gesetze-im-internet.de/gg/art_9.html
- Collective Agreements Act (Tarifvertragsgesetz, TVG). Federal Ministry of Justice, 1949. https://www.gesetze-im-internet.de/tvg/
- Federal Labour Court (Bundesarbeitsgericht), judgment of 26.07.2016 – 1 AZR 160/14 (Proportionality in industrial action). https://www.bundesarbeitsgericht.de
- Temporary Employment Act (Arbeitnehmerüberlassungsgesetz, AÜG), § 11 (5) (Prohibition on using agency workers as strike-breakers). Federal Ministry of Justice, last amended 2017. https://www.gesetze-im-internet.de/a_g/index.html
- Dütz, Wilhelm; Thüsing, Gregor: Arbeitsrecht (Employment Law). C.H. Beck, current edition. https://www.beck-shop.de
- Müller-Glöge, R.; Preis, U.; Schmidt, I. (eds.): Erfurter Kommentar zum Arbeitsrecht, commentary on Art. 9 GG. C.H. Beck, 2024.
- Haufe Editorial Team: Streik und Aussperrung – Arbeitsrecht kompakt (Strike and Lockout – Employment Law in Brief). Haufe Online, 2024. https://www.haufe.de/personal/arbeitsrecht/streik
Make a better pre-selection — even before the first interview
In just a few minutes, Aivy shows you which candidates really fit the role. Beyond resumes based on strengths.
