Undermines Trump's NLRB workers' rights

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Sana Kliniken AG, with 58 hospitals, 44 medical care centers and several retirement homes, is one of the largest private clinic groups in Germany. The group employs a total of around 33,000 people.

The group was founded in 1976 by private health insurers. To date, 25 private health insurance companies are the shareholders of Sana Kliniken AG. The company is based in Ismaning (near Munich).

Sana DGS pro.service GmbH is a 100% subsidiary of Sana Immobilien Service GmbH and therefore part of Sana Kliniken AG. The subsidiary offers its “internal customers in the healthcare sector innovative and economical solutions in the area of ​​infrastructural facility management”. She works at all Sana Kliniken AG locations. In addition to cleaning the Sana clinics, the portfolio also includes ward assistance, pick-up and delivery services, gates and security services. The company has around 3,000 employees, the majority of whom are part-time.

Obviously we are dealing with one of these constructs, where certain areas that used to be part of the clinics and their workforce have been outsourced. Certainly not so that the employees there can have it nicer or quieter or even earn more. You already suspect that such outsourcing is primarily about increasing profitability in the sense of reducing business costs.

And from this structure, which otherwise always has to act under the surface of the water, we now receive disturbing messages at first glance.

Whereby one has to note: not directly from the company, but the ver.di union has spoken out with a press release that is entitled: ver.di is strongly criticizing the announced mass layoffs of Sana Kliniken AG in the service area. Mass discharge in the hospital sector? In these times? Is that a mistake, a misprint?

Unfortunately, no. The DGS pro.service GmbH states: »More than 1,000 employees will be affected by the recently announced partial closure, which should be completed by December 31, 2021 at the latest. All areas except cleaning are to be closed. «Unfortunately, the ver.di union does not contain any further detailed information.

Why do they do that at Sana Kliniken AG? As always in such cases, one can only make assumptions from the outside.

So it could be that something has to do with the last collective bargaining. Since 2009 ver.di has been negotiating group collective agreements for the non-medical sector with Sana Kliniken AG, which, including the application collective agreements, cover almost half of the hospitals. The other clinics are essentially subject to the TVöD, application collective agreements for the TVöD or other regulations based on in-house collective agreements. That sounds complicated. It is. Be that as it may, there was a collective bargaining round last year and an agreement was reached on a deal. And if you look at the flyer that was used to advertise the degree, you will find this inconspicuous note: "For employees without training, but with patient-related activities, we were finally able to enforce a uniform classification in P5." Who and what this P5 is about, you will find this explanation: ward helper, ward assistant, nursing assistant, service assistant (each patient). And then - as far as one can judge from the outside - they will be more expensive for the company, because the union explains: »On January 1, 2021, a P table will be introduced that is close to the TVöD level. For the time being, this only applies to acute care centers. It is ensured that the application of this pay table increases the collectively agreed monthly wage by at least 3.5%. ”In this respect, one could assume that employers are now trying to sell this area in order to then possibly purchase the corresponding service from outside through third-party providers that are cheaper. As written, possibly.

But it could also be about a different background, which was here on March 10, 2020 in the article The insanity with the forces in care. Or: Follow the money, then an economically rational approach will be called out of the obvious madness, i.e. shortly before the first corona wave hit us (and especially the clinics): »In more and more hospitals, the auxiliary staff are being cut and their work should and the nursing staff "participate". No joke, ”it was reported at the time. In the article, this report about one of the other private hospital groups was cited as an example of this somewhat steep assertion: Helios Schleswig: Even more work for nurses. What has happened there?

»Nursing staff are desperately wanted in Schleswig-Holstein. Again and again, employees report that they are working on the verge of their limits. The federal government wanted to change this by law and has redesigned the financing of care in hospitals with the Nursing Staff Strengthening Act. According to ver.di, this leads to new problems in Schleswig (Schleswig-Flensburg district) at the Helios Clinic. According to information from NDR Schleswig-Holstein, the clinic has released so-called service assistants. Their tasks - such as supplying the patients with food - have to be carried out by the nurses. "

Nursing staff suffer from a law that was supposed to exonerate them. Just seemingly insane. As usual, you don't make a mistake if you follow the motto "Follow the money":

According to the Nursing Staff Strengthening Act, the health insurance companies have been taking over the costs of every trained nurse for the hospitals since the beginning of the year. This should enable them to hire more nurses. Unskilled nurses have not yet come under this regulation and are therefore too expensive for the clinics. The managing director of the Helios Klinikum Schleswig, John Näthke, explains: "That made us think about having the service activities carried out by qualified nursing staff."

His reasoning is particularly cute: "The main reason: You want to get even better quality." Sure.

“As a result, there is a shortage of service staff on the wards. The nursing staff must take over the tasks. The hospital in Schleswig has hired new specialists - but according to its own information, there are currently still ten to twelve employees short. Were there more nurses for this? You can guess the answer:

A nurse from the clinic reports to the NDR that »there are no additional specialists on his ward. All tasks were left to him and his colleagues. It also takes around two and a half hours to provide all patients with the three meals. The trained staff would now also have to bring all patients to their examinations. The service staff would have done that beforehand. Breaks are hardly possible now. The burdens are so high that he and other colleagues are about to hand in the notice. "

Last year, what you can now call up again was accounted for here: “And unfortunately that is not an isolated case. The development with head-shedding potential arises from its own business logic, which in turn can be derived from the fact that what is (not) financed. However, in a country that is absolutely in short supply, where qualified nursing staff are missing or dropping out everywhere, this will contribute to accelerating and increasing the shortage even further, one does not really have to explain in detail.

It will be exciting to see whether the new development in the Sana universe can be classified in this context or whether other motives guided the action. Be that as it may, and with a view to those affected: The last in the chain are biting the dogs again.

»All employees in geriatric care will receive a tiered entitlement to a one-time special benefit (Corona premium) of up to 1,000 euros in 2020. The highest bonus is given to full-time employees in direct care and support. "And not only that:" Trainees, volunteers, helpers in the voluntary social year and temporary workers and employees in service companies should also receive a bonus. "

You could read that on May 23, 2020 on the website of the Federal Ministry of Health under the heading: Second law for the protection of the population in an epidemic situation of national scope.

When the law with the special regulation for a “Corona premium” for care for the elderly came into force, we had already had a few weeks of discussion behind us - the main issue, as is so often the case, was who should or must take over the bill (See the article Just don't move yourself and point your finger at others: The special bonus for employees in geriatric care and the trip to Jerusalem for the question: Who pays (not)? from April 27, 2020). In the law (Federal Law Gazette 2020 No. 23 of May 22, 2020), the community of contributors was first consulted and a vague prospect of possible financing from tax revenues was noted: »Employers in care are initially reimbursed by the social care insurance in the form of advance payments. In the second half of 2020, the Federal Ministry of Health and the Federal Ministry of Finance will jointly determine the extent to which the statutory health and long-term care insurance will receive subsidies from the federal government to stabilize the respective contribution rates (also to refinance the corona premiums), "so the Federal Ministry of Health.

But at least at this start it was clear that all employees in outpatient and inpatient care for the elderly were entitled to the “Corona premium” (i.e. those that were explicitly listed in paragraphs 1-3 of the inserted § 150a SGB XI). And not only that - the premium was not capped at a maximum of 1,000 euros: "The federal states and employers in the care sector can top up the Corona premium up to the amount of the tax and social security tax-free sum of 1,500 euros." Then there is the answer to the possible question of why you could pay up to 1,500 euros "Corona premium": The amount is derived from the fact that the Federal Minister of Finance Olaf Scholz (SPD) had issued a regulation that employers can grant their employees special corona bonuses of up to 1,500 euros in 2020 without taxes and social contributions being levied on them. Gross for net.

Beyond the knocking and stabbing behind the scenes with regard to the question of which box the federal share for the premium is taken from, this formulation in the law is of decisive importance and of almost wonderfully clear clarity:

»The approved care facilities are obliged to pay their employees a one-off special benefit for each employee in accordance with paragraphs 2 to 6 and 8 in 2020 for the purpose of appreciating the special requirements during the coronavirus-SARS-CoV-2 pandemic (Corona Premium) «(§ 150a SGB XI Paragraph 1).

The employers are obliged, which means that the employees in outpatient and inpatient care for the elderly have a legal right to these special benefits - and thus we have a significantly better regulation than what was later postponed as the "Corona premium" for the hospital care workers has been. Or let's put it more precisely: For a selected group of nurses who are out and about in clinics (see the comments in the article When a well-intentioned recognition bonus at the beginning mutates into a toxic fissure fungus. Sorted by the Corona bonus for nurses and differentiate into nirvana of September 3, 2020).

Since we are already in April 2021, we can actually put the topic on file and devote ourselves to one of the numerous current construction sites. You might think if there wasn't a message like this:

"The United Services Union (ver.di) sharply criticizes employers who have withheld the statutory Corona bonus of up to 1,500 euros from their employees in care companies." This is how this report from the union begins: Care for the elderly: Many companies do not pay employees statutory Corona -Premium - ver.di calls on those affected to assert claims. Sorry? Last year - as quoted - there was even a legal right to the "Corona premium" written into the law.

“Of all people, employees who often only receive a minimum wage and who are extremely challenged and at risk of refusing the legally regulated bonus in the corona pandemic are simply shameful. What else goes wrong in this industry if even money, for which there is a legal claim and which the public sector pays for this extraordinary strain, does not reach the employees? ", Sylvia Bühler, member of the ver.di board of directors, becomes , quoted. And we also learn: "Many employees who are entitled to a bonus would not have received it, especially for private services in outpatient care for the elderly."

How does the union, which is known to have only one degree of organization among employees in the care of the elderly, which one must describe as molecular, come to such knowledge?

The union cites a recent study by the tax consultancy ETL Advision on wage comparison in the care sector. This study comes to the result that nationwide by December 2020, more than 40 percent of the employees in the examined outpatient and semi-inpatient care establishments had not received the tax-free Corona bonus due to them. More than 360,000 data records were evaluated for the study, it includes more than 1,000 care services. The premium was financed by funds from the federal government and the federal states, and it was paid out through the employer.

You have to imagine that - 40 percent of the employees did not receive the bonus due to them from their employer, according to the data from more than 1,000 care services. This detail is also interesting in view of the fact that otherwise the employees in East Germany are usually worse off: »In the East region, significantly more nursing staff received the bonus than in the West region. Similar differences were found in the size of the payouts. "

And now?

What is the union proposing? »We urgently recommend the employees concerned to assert their claims against their employer in writing ... Although there is a high probability that they would no longer receive any reimbursements from the long-term care insurance funds, they would have to attribute that to themselves. Union members are also granted legal protection if the employer fails to meet the claim. Although it is new legal territory, the probability that the courts will confirm the claim against the employer is very high. "

Almost everyone is complaining about the consequences and the burdens of the corona pandemic, and the list of losers is getting longer and longer. But not everyone will really agree - because, as always, there are winners. And one winner is definitely certain: Amazon. Even the first Corona year, i.e. 2020, was a "gift" for this globally positioned company. All you have to do is look at these two images:

And this figure does not yet contain the fourth quarter of 2020, which is so extraordinarily rich in gifts for the group, because with the last three months of last year the numbers have once again made a real leap up: Overall $ 125.56 billion was implemented by Amazon in the 4th quarter of 2020, which corresponds to a sales growth of 44 percent compared to the previous year (2019).

And also at the level of the employment conditions at Amazon, which are repeatedly discussed in the media - here in Germany think of the attempts by the union ver.di, the group for its German offshoots, that come along like a "Every day the marmot greets" continuous loop Forcing collective bargaining agreement - with a view to the pure numbers, let's talk about a mega-machine that took off last year, as it were: For the first ten months of the Corona year 2020 alone, Amazon reported more than 427,000 new, additional employees and thus one Total employment exceeded 1.2 million people.

If you take the whole of 2020 into account, the big leap that the group was able to make with the tailwind of the corona pandemic becomes clearly visible:

The struggle of (and for) the Amazon workers in Alabama, USA

The reports on the sometimes more than questionable working conditions at Amazon fill wall units not only in Germany. And one can imagine that the conditions in the USA are considerably worse in the parent country of the group, i.e. in the USA. But recently there was news from this unions-unfriendly country that spread hope:

“Bernie Sanders is electrified. The white-haired Senator from Vermont and self-declared socialist hopes that history will soon be made in the deep south of the USA. "This is going to be a shot that will be heard all over the world," Sanders recently told CBS. And he believes that will encourage many other workers to join unions. "

Under the pithy heading of workers' struggle in Alabama, Katrin Brand reported from the United States on March 15, 2021: »Alabama and Amazon, that is indeed a historical constellation. Alabama voted over 62 percent of Donald Trump last year, unions have a difficult time here. And now, of all places, almost 6,000 Amazon employees in Alabama are voting on whether they want to organize themselves - the biggest attack on the company to date, which is in the USA has been able to repel every attempt of this kind so far.

When Amazon built a large delivery center in 2020, it was initially good news for the roughly 30,000 predominantly black residents of Bessemer, named after Henry Bessemer, the inventor of a steelmaking process. After the decline of coal and steel, the small town fell into misery: high unemployment, high violent crime. Whoever could moved away. Amazon pays twice the Alabama minimum wage. Sounds good, but here too there were complaints about the working conditions: »Long working hours with only two breaks, long distances, upstairs, downstairs, when someone needs to go to the toilet. Others complain about the surveillance and the fast pace of work. And then there was also Covid-19. "The people who work at Amazon" would have had the feeling that their health and safety had not been properly taken care of ... In addition to their own impotence, they were also angry with the Amazon boss Jeff Bezos, who added tens of billions of dollars to his fortune in the pandemic. "

In itself, one might think, a good starting point for trade unions to organize the workers concerned and collectively to wrest improvements from the employer. To do this, however, the employees must actively vote for representation by a union - and you can already read the doubts in the following quote: “By the end of March, they will vote by postal vote on joining the union. Not all employees are in favor of it, especially since Amazon is creating a massive mood, it is reported. The group is threatened with layoffs or relocation. «The union, on the other hand - specifically in this case the retail trade union Retail, Wholesale and Department Store Union (RWDSU), which represents around 100,000 members in the USA and with the larger United Food and Commercial Workers Union (UFCW), with around 1.3 million members, relied and hoped for the decades-long trade union tradition in Bessemer (and for the enormous tailwind from politics, which ranges from Bernie Sanders to US President Biden.

And then that: Amazon's union formation in the USA failed: »Of the more than 5,800 employees at the logistics center, 3,215 ultimately voted. In the ongoing vote count, the no-camp exceeded the majority threshold of 1,608 votes. At that point in time there were only a little more than 600 yes votes. «How can that be? One possible starting point can be found in the report: “Amazon ... took decisive action against the plans. In the logistics center in Bessemer, management spoke out against unions at conferences and even on flyers in the toilets. She also set up a website where she argues why a union is unnecessary. "

The preliminary voting results, published by the National Labor Relations Board (NLRB), are now available. The most important result: "A majority of the valid votes counted plus challenged ballots has not been cast for the Petitioner, the Retail, Wholesale and Department Store Union."

If you only take into account the previously valid yes or no votes, then the result is a crushing defeat for the union: not even 30 percent of the counted and valid votes go to the vote for union representation by the RWDSU. Even if all of the 505 contested ballots (most of which were allegedly attacked by Amazon regarding their validity) were to be completely allocated to the camp of union supporters, the necessary percentage value cannot be achieved, because both sides need 1,521 votes to be able to win.

You can turn it around as you want: Amazon’s Win Delivers a Stinging Defeat to the U.S. Labor Movement, was the headline of an article by Josh Eidelson published by Bloomberg: “Unionizing the company’s Bessemer, Ala. warehouse became a rallying cry for worker advocates, but that wasn't enough. "

On the one hand, you have to see the changes in a country in which, in the past few decades, “top nonunion American companies have been virtually impervious to organizing efforts”: “The election had signaled a massive shift in Amazon’s labor relations. A few years ago, collective action by Amazon employees was rare, but the safety issues thrown into high relief by the Covid-19 pandemic, in tandem with increased funds and focus from unions, have made strikes and protests at the company’s warehouses more common. The #BlackLivesMatter movement and organizing efforts by Alabama poultry workers also helped RWDSU sign up thousands of Bessemer employees. It wasn't enough. "

He points out that in the coming years, Bessemer's vote will be cited again and again by Amazon as a justification for the (anti-union) employment policy.

How did this defeat come about? On the one hand, Eidelson points out strategic mistakes by the RWDSU union, for example “that they accept votes during the seven-week election from hundreds of additional employees, including temps.” However, that was not the decisive factor, but a basic problem in the USA: “ But the bigger challenges were the structural disadvantages that face workers trying to organize at any major nonunion company in the US "

And he describes the enormous imbalance between the companies and the unions: “Companies are allowed to force workers into group meetings and one-on-one discussions that include predictions of dire consequences in the event of unionization. (Employees say Amazon did so in Bessemer; the company says it hosted “information sessions” so employees could “understand the facts.”) “Being under the watchful eye and control of the employer all day long - and subject to the messages of the employer, for which there's no equal time for the union - detracts from it really being a fair and free election, ”says Wilma Liebman, a former chair of the National Labor Relations Board.“ And that should also come from the armory of Union Busting don't forget: "Employers also have incentives to illegally punish or fire activist workers, which labor board prosecutors have accused Amazon of doing at other warehouses."

And even if a vote was taken in favor of a union, experience in the USA shows that employees will by no means in the foreseeable future or at all benefit from a collective agreement, because “employers aren't legally compelled to complete a union contract in a specified period of time, so about half of workers who win union votes won't have a union contract a year later. Some companies simply shut down operations that unionize. ”Unsurprisingly, some Amazon workers in Bessemer reported precisely this threat from the company during the seven-week term.

Against this background, the individual case of Bessemer can be classified under this long-lamented structural problem in the USA: “Unions have failed to reform federal labor laws for most of the past century, stymied repeatedly by fervent Republican opposition, Democratic ambivalence, and the Senate filibuster. «

Excursus: The enormous effects of the eroded collective wage bargaining in the USA

Parallel to the events in Alabama, the Economic Policy Institute (EPI) in Washington has published a new report that deals with the effects of the "collective bargaining agreement" (which is what one would call it in Germany), which has been declining for many years individual but collective wage negotiations mediated through a union:

➔ Lawrence Mishel (2021): The enormous impact of eroded collective bargaining on wages, Washington, DC: Economic Policy Institute (EPI), April 8, 2021

A major factor that has depressed average wage growth and fueled wage inequality over the past four decades is the erosion of collective bargaining. The numbers look really bad: the proportion of workers covered by a collective agreement has fallen from 27.0% in 1979 to just 11.6% in 2019. The erosion of collective wage bargaining has been particularly detrimental to the Had an impact on men's wages, as men were far more unionized than women in 1979 (31.5% of men were bargaining at the time, compared with 18.8% of women).

The report from the EPI provides some solid figures in dollars and cents of what this erosion has meant:

For the “typical” or median worker, the decline in unionization means a loss of $ 1.56 per hour worked, the equivalent of $ 3,250 for a full-time worker for a year.
➔ Declining union density increased inequality between high and average wage earners. The “deunionization” widened the 90/50 wage gap (the gap between the earners at the 90th percentile of the wage distribution and the 50th percentile) by 7.7 points and thus explains 33.1% of the 23.2-point growth in the Wage gap between high and average wage earners in the period 1979-2017 (“average” measured by the median).
➔ Unions in the United States have a higher than average presence among those with low and middle wages, those with lower levels of education and the non-whites - and this has been the case since the birth of the modern labor movement in the New Deal. The erosion of collective bargaining has accordingly increased wage inequality.

What are the conclusions of Mishel (2021)? At the end of the report, he writes: Wage growth is largely driven by political decisions and is a political variable. It reacts - robustly - to major political changes. Policy makers can create wealth for the vast majority of US workers on the basis of faster wage growth. Whether workers will get a fair share of the profits in the economy in the future will depend not so much on abstract forces beyond their control, but on demanding that their political representatives restore bargaining power to workers. individually and collectively. Laws that expand collective bargaining by giving workers the opportunity to choose union representation and strengthening union rights are critical to restoring robust wage growth.

Is it always just "the other" and "the" system? In all attempts to explain the renewed defeat, there remains a "personal contribution" - and this is also relevant for Germany

The further defeat of the union movement, which has already been weakened for many years, as described at the level of a current individual case using the example of Amazon workers in Bessemer, Alabama, can and must be safely integrated into the many activities of the companies, through in some cases massive and destructive union busting To prevent the renaissance of the trade unions in the factories and they receive massive political backing from the Republicans, but also from "ambivalent" Democrats, where there are quite a number of trade union skeptics and opponents. US labor law, too, is certainly an obstacle to strategies for strengthening collective bargaining on working conditions.

And you can immediately try to divert attention from the really crashing vote defeat in Bessemer, as happens, for example, in this comment by Moritz Wichmann: Lost a battle: »The union in Alabama clearly loses an important election, but: spontaneous wildcat strike at Amazon in Chicago shows grassroots activism among Amazon employees. "And further:" The fact that the vote in Alabama, with 1798 to 738 votes, was lost more clearly than previously thought by many observers who expected a narrow outcome, is just a losing battle. The fight continues. ”The author refers to a spontaneous wildcat strike in Chicago. In the course of a “walkout”, the workers at an Amazon warehouse left their workplaces in protest against the harsh working conditions of the new megacycle shift system. You now want to organize yourself across individual department stores in the region. The Teamster transport workers' union wants to organize Amazon drivers in Iowa and not vote for recognition of union representation, but through strikes.

That may be all and it is certainly worth reporting - but it does not change the question why - not only in Bessemer - the employees concerned so clearly refused union representation. That can not only be due to some disruptive actions by employers, who certainly have their share. You can and must look at two further explanations (even if it hurts the pro-union camps, of course):

➔ On the one hand, the high level of rejection could also be due to the fact that those affected do not find the trade union offer as attractive as many activists from the trade union movement might automatically or unconsciously assume. Perhaps there are also painful and negative experiences with unions in the past that make workers shy away from seeing anything useful in union representation.

➔ And another aspect has to be raised against the background of the already generally low level of organization, which then turns out to be even lower in the lower levels of the labor market, i.e. where the conditions are particularly bad and the need for collective action is particularly great : There are quite a lot of employees who simply cannot get their butts up to organize and get involved. They believe that their problems have to be solved by others who may have already finished and do not expect any improvement at all. Be that as it may, one cannot and must not always brand “the other” or “the” system responsibly, but one must also ask the question why so many employees, especially in the low-wage industries, are obviously not in the mood for collective resistance to participate. This can also be due to the affected employees themselves, not always just to the others.

And let's be honest, the two additional dimensions proposed here - mind you - to explain the obvious organizational problems of trade unions, especially in those segments of the labor market, where something can only change through collective action and is solely due to the very unequal power relations between employer and employee Page, are also highly relevant for Germany.

The current discussions about improvements in working conditions in nursing which are to be striven for and which are often called for in Sunday speeches, for example, cannot be conducted properly if one does not take note of the fact that the ver.di union, which is actually responsible for this, is in the field of care for the elderly, i.e. where the The worst working conditions prevail and the urgent need for action exists, is sometimes not represented at all or only on a molecular scale. And it goes without saying that employers shouldn't have to worry about a degree of organization that is probably well below 10 percent. Now the answer to the obvious question of why has to be varied, there isn't just one reason that captures everything.Much of this can only be understood historically, others have to do with particularities in the respective field (in geriatric care, for example, the still high proportion of church-bound organizations with their numerous special rights vis-à-vis those who work there) - but part of the explanation must take into account that on the one hand there are massive acceptance problems for the ver.di union among a large part of the nursing staff (and the union would do well to acknowledge this fact and also to reflect self-critically whether there are reasons for it that led to this result), on the other hand But many nurses also have to be questioned why they still obviously believe that there will be a breakthrough in "politics", as it were, analogous to the immaculate conception, with the result that a "white knight" descends from there and the Nursing staff are delighted with sharply rising wages and better staffing codes.

And the problems of trade union organization, raised using the example of care for the elderly, are also found in other sectors in which the need for collectivization is (actually) particularly high. Just think of retail here. Or other segments of the service. All political support and promotion attempts with regard to stronger collective bargaining coverage and all organizing attempts by committed trade unionists will come to nothing at the end of the day (or if so, then produce a few lighthouses), unless there is a certain sounding board among the employees the pure consumption of any pull-ups by others goes beyond and which also includes the more or less active contribution.

“Federal Minister of Labor and Social Affairs, Hubertus Heil, reacted with disappointment to today's decision by Caritas against a care collective agreement”, reported the ministry on February 25, 2021 under the heading “Today is a bad day for care” and a link to it Video with the minister's statement. The background to this decision and the massive criticism of it was presented in detail in this article from March 7, 2021: What an unholy disaster: Catholic Caritas is blocking the way to a generally binding collective agreement for the care of the elderly, the associations of private employers are pleased and the nurses at the bottom stay at the bottom. Since then, Caritas in particular has experienced (the evangelical diakonia was just "lucky" that one day after the labor law commission of Catholics they had to make a decision and show their colors, which they then "renounced" because of the Caritas rejection and went into the bushes has hit) a violent headwind, which is now piqued on the side of the association, "affected" and "outraged" shows.

In the attempts at argumentation by the Caritas leadership, one strand is now again and again recognizable, which focuses on the “threat potential” for their own (allegedly) much better wages in the Catholic care facilities. According to this, there would be the risk that at some point the “cost bearers”, specifically the long-term care insurance funds, would refer to the one collective agreement that was then declared generally binding in the price negotiations, so that the higher remuneration in the other facilities would no longer be financed (can).

At the same time, those who try to defend the rejection of a generally binding collective bargaining agreement with minimum standards (because that's all it was about) repeatedly point out that it is already difficult today to achieve higher wages for caregivers (which of course also result in higher costs which then have to be recognized in the care contracts to be agreed with each facility with the facility-specific care rates) to get refinanced. Now, even if things get complicated, you have to tell things apart. Because a look into practice shows or seems to show that the argument of the insecure financing of higher wages by the cost bearers cannot be dismissed out of hand. There are reports about this again and again - and from this experience and perspective it is not inconclusive that there is a risk that, as soon as there is a lower care tariff, the care funds would only use this as a basis for agreeing the care rates. And that those who pay better will be left out in the rain (which, if the criticism is correct, they will already experience today).

You have to separate things from one another in a first step: one has only limited or nothing to do with the other, but in the end it does. But only in a second step. From the current situation, nothing speaks against the consent of the denominationally bound supporters of care facilities, who are anyway outside the field of play, to a generally binding collective agreement with higher standards than what has been and is set as industry minimum wages by a care minimum wage commission. Because the salaries already paid today are allegedly higher than what the ver.di union has agreed with a small group of employers from the non-profit sector, although this is partly for the many nurses who work in the tariff-free zones of the private-sector providers would mean a significant improvement to the current state. One would then only narrow the gap between the very bottom and the world of church regulations a little. But the now so vehemently lamented "financing gap" for the care facilities, which already pay better today, is not affected by this for the time being. This problem, should it exist on a larger scale in individual cases, would not change because the facilities now who have been paying significantly lower wages so far, would have to pay somewhat less lower wages. This refers to the mechanics and the political structure of the concrete negotiation of the refinancing in negotiations on supply contracts, but not to a problem of the now failed collective agreement for the care of the elderly itself.

It has already been reported that there was also considerable contradiction from the own Catholic ranks to the rejection decision of the Caritas commission (and it must be expressly pointed out at this point that the employee representatives in the commission voted in favor of the collective agreement, but it then stated the so-called "employers", i.e. the "Christian" employer side failed). Among them, for example, this remarkable appeal from 17 professors from Christian social ethics:

➔ Social ethical statement on the refusal of Caritas to agree to a uniform collective agreement for elderly care, March 4th, 2021

In it we find this argumentation, along with many other important points: »The new statutory ordinance based on the collective agreement agreed by Ver.di and BVAP would not rule out the possibility that individual providers would represent their better working conditions and higher payments in care rate negotiations due to their own collective bargaining systems. According to Section 84 (2) SGB XI, the resulting higher costs must not be considered uneconomical and must therefore be publicly refinanced, with the exception of the person in need of care. "

The mentioned § 84 SGB XI is headed with "assessment principles" and refers to the nursing care rates, i.e. the remuneration of the residents or their payers for the partially or fully inpatient care services of the nursing home as well as for the care and for the medical treatment care. Section 84 (2) of the German Social Code Book XI states: “The nursing care rates must be performance-based.” What exactly “is performance-based” has long been a matter of dispute. But then it goes on in the same paragraph of the paragraph - and this is what the social ethicists refer to in their statement:

»The nursing care rates must enable a nursing home with economic management to finance its expenses and to fulfill its supply mandate, taking into account an appropriate remuneration of the entrepreneurial risk. The payment of salaries up to the level of collectively agreed remuneration as well as corresponding remuneration according to church labor law regulations cannot be rejected as uneconomical. An objective reason is required for any further payment. Any surpluses remain with the nursing home. "

However, you have to read carefully - and therefore this is not a contradiction to the criticism put forward by other parties of the non-recognition of higher costs in nursing care rate negotiations: The provision in Section 84 (2) SGB XI does not say that salaries are based on a tariff or the church employment contract guidelines are refinanced, but that one side of the negotiation, i.e. the cost bearers, in a specific negotiation cannot per se reject higher costs due to a collective agreement or equivalent regulation of the churches as "uneconomical" (that was the structural problem in the past, which of course triggered a downward adjustment pressure, because one oriented oneself to the lower costs, which were actually generated by low pay, and which were passed on). But the other way around, it also turns into a shoe: The regulation does not mean that the facilities actually have to be reimbursed for the costs, the regulation does not provide that.

You have to look at § 72 SGB XI: “Approval for care through a supply contract” and the wage payment standardized there

In addition to the mentioned § 84 SGB XI, there is a preceding paragraph that is highly relevant to our topic here: § 72 SGB XI, headed with "Approval for care through a supply contract". The long-term care insurance funds are only allowed to provide long-term care through care institutions with which a care contract exists (Section 72 (1) SGB XI). Supply contracts, on the other hand, may only be concluded with institutions that meet the requirements set out in Section 72 (3) SGB XI.

And in Section 72 (3) SGB XI you will find this provision under number 3: Supply contracts may only be concluded with care facilities that »… pay their employees a remuneration that is customary in care facilities, unless they are subject to a regulation on minimum wage rates based on the law on mandatory working conditions for cross-border posted workers and for employees regularly employed in Germany (Employee Posting Act). "

There it is, the phrase “customary remuneration”. That sounds more accurate than it is in practice. But first I would like to point out that this formulation has been in the law for several years and is to be understood as a reaction to the earlier criticism of the wage dumping processes in the care of the elderly via the instrument of care rate negotiations. On this from a contribution that was published in 2009 - incidentally in the specialist journal of the Caritas Association (see Andreas Hänlein: Local remuneration is difficult to determine, 2009):

The regulation that outpatient and inpatient care at the expense of long-term care insurance may only take place in institutions that remunerate their employees “according to local standards” was introduced with the Care Development Act 2008. At that time, the legislature justified the inclusion of this new requirement for the conclusion of supply contracts with the fact that a massive loss of quality in care facilities should be prevented by excluding providers who do not at least pay the local remuneration. "It is unmistakable that behind the new regulation there is also the concern to prevent dumping wages in care," said Hänlein in his article from 2009.

The goal and a general regulation are one thing, the other are the very practical questions: For example, the question of what is meant by “remuneration that is customary in care facilities”. In the event that regional remuneration is not significantly influenced by collective bargaining regulations, the “general wage level” is to be used according to the reasons for the draft law. What is it exactly? Hänlein quotes this sentence from the response of the Federal Government at the time to an inquiry: “This general wage level is determined on the basis of the statistically determined average of the locally applicable wages.” He comments critically on this concretization proposal: “This is the main reason why it causes difficulties because the statistical average wage can hardly be described linguistically as the usual wage, because the arithmetical average says nothing about how many employees actually receive wages in this amount. "At the same time, he proposed a solution:" This difficulty leaves Overcome yourself reasonably plausibly if you agree on a percentage of the average wage - for example 90 percent - which should not be undercut. With this approach, it would be very likely that a clear majority of workers would earn more than the limit stated. On the basis of this, one could say that a wage rate below this level is not customary in the area. ”But follow-up questions immediately arise: Is the average wage really the right standard? Shouldn't one rather take the median value? Just to mention one question. Up to the not trivial task of being able to determine the regional average wages precisely at all.

That being said, the standardization still in law today with the "local wages and salaries" naturally means that in many regions where the everyday life of employees in care facilities has a dominant market position that is not subject to collective bargaining agreements (and in the foreseeable future, it is not declared generally binding) The operator of care facilities and services subject to collective bargaining agreement is characterized by the fact that the resulting low wages are “customary” remuneration and, due to the inclusion in Section 72 of Book XI of the Social Code, fulfills the prerequisite for the conclusion of a pension agreement.

But that's supposed to be history? In the future, remuneration according to the tariff should become a prerequisite for a supply contract. Or?

Now one or the other could rightly object at this point that this should be eliminated in the future to the extent that tariff remuneration should be a prerequisite for being able to conclude these supply contracts. To do this, you have to go back to the past year. In November 2020, the Federal Ministry of Health announced these key points for the upcoming reform of long-term care insurance:

➔ Federal Ministry of Health (2020): Rethinking long-term care insurance: cornerstones of the 2021 long-term care reform, Berlin, November 4th, 2020

And there you can find this objective on page 3:

"The remuneration according to the tariff for outpatient and inpatient care facilities should in future become a prerequisite for approval for care."

Voila, the "local remuneration" is gone. That was in November 2020. Now we are in March 2021 and we are receiving a “working draft” from the Federal Ministry of Health that is much more specific than the cornerstones of how the legislature should proceed:

➔ Federal Ministry of Health (2021): working draft. Draft of a law on the reform of long-term care insurance (Long-term Care Reform Act), status: 12.03.2021

It is worth taking a closer look at the draft, specifically at the proposal relating to Section 72 of Book XI of the Social Code. According to the present working draft, the following paragraph 3a is to be included in § 72 SGB XI (p. 37f. Of the working draft):

»From July 1, 2022, supply contracts may only be concluded with care facilities that pay their employees in the care and support sector a remuneration that is agreed in collective agreements or church labor law regulations to which the care facilities are bound. With care institutions that are not bound by collective bargaining agreements or church labor law regulations, supply contracts may be concluded if they pay their employees in the care and support area a remuneration that is not less than the remuneration of a spatially, temporally, technically and personally applicable collective agreement. For church care facilities, in the case of sentence 2, payment of remuneration that does not fall below the level of the applicable church labor regulations is also permissible. In the absence of applicable collective bargaining agreements or if these are not applicable to all employees in the care and support area of ​​a care facility, a local remuneration is to be paid. "

It is not difficult to see - the lean formulation that “a tariff” is a prerequisite for a supply contract is gone - and the “local remuneration” is back.

The German Caritas Association immediately spoke up: "Draft for a care reform falls short of expectations in important points," said a press release under the heading of collective bargaining coverage that was published on March 16, 2021, must not be a sham. Correctly the diagnosis: "The mechanism of collective bargaining coverage, which is supposed to protect nursing staff from dumping wages, has been much softened compared to earlier announcements." Caritas President Peter Neher is quoted with these words: "We expect a collective bargaining agreement that deserves this name - in other words: who has no collective bargaining agreement, is not allowed to operate on the market ... and such a regulation was announced by the Federal Minister of Health for six months. Private employers must also be obliged to pay fair wages. “The collective bargaining agreement must apply without any ifs or buts. Undermining it by referring to a 'local level of remuneration', as can now be read in the draft, is not acceptable, ”says Neher. Last but not least, it is completely unclear how this is to be determined. "If this rule is retained, the collective bargaining agreement is a fraudulent label," says Neher. "We cannot accept that". "

The day before, on March 15th, 2021, the ver.di union also spoke out critically: ver.di: Draft law on nursing care reform does not result in higher wages: »The United Services Union (ver.di) criticizes the working draft for a change in the law to long-term care insurance from the Federal Ministry of Health, with which ostensibly better pay for carers is to be achieved, as completely inadequate. “This design is just plain bold. On the surface, the impression is given that the supply contract is tied to fair wages. In fact, it does not contribute to improving income or other working conditions in outpatient and inpatient care, ”said Sylvia Bühler, member of the ver.di federal executive board, sharply criticizing the planned regulations. "Such an inadequate law would be no substitute for the collective agreement, which should be extended to the entire care of the elderly, but which initially failed because of Caritas."

And further: »The draft regulation also raises numerous questions and problems. This does not prevent pseudo-unions from concluding cheap courtesy collective agreements with care providers, as was the case in the past, Bühler added. The draft is also full of loopholes; if no collective agreement can be used, local wages should be used. "This goes in circles, because in many places the wages are currently only at the inadequate level of the minimum wage for care," says Bühler. "

But that was not all - the argument from the Caritas camp quoted at the beginning of this article that a generally binding collective agreement for care for the elderly can threaten the (allegedly) higher wages of providers of collective agreements or church labor law is now becoming obviously confirmed by the union - even though the planned collective agreement for elderly care failed due to the lack of approval from the church camp. The union writes:

“In addition, the secured full refinancing of collectively agreed salaries and corresponding remuneration according to church labor law is at risk. In the future, it should be checked whether these provide for an economic remuneration structure according to local standards. That is completely unacceptable. Collective wages must always continue to be considered economic, says Bühler. "

That would be a step backwards compared to today, if that were to be the case. The only thing that helps is a look at the original, i.e. the working draft from Spahn (CDU) - and we will find it on page 38 of the draft. You have to know that in addition to § 72 and 84 SGB XI, which have been dealt with so far, there is also § 82 SGB XI, which is under the highly relevant heading "Financing of care facilities". There, the different proportionate financing pillars are standardized, from which the own shares for those in need of care are then derived. In the working draft from the Federal Ministry of Health we now find this note:

After § 82b, the following (new) § 82c is additionally inserted:

"Section 82c Profitability of Personnel Expenses

(1) From July 1, 2022

1. in the case of care facilities that are bound by collective bargaining agreements or are bound by church labor law regulations, remuneration for employees up to the amount of the requirements resulting from this obligation or
2. In the case of all other care facilities, the employees are paid up to the amount of a collective agreement applicable spatially, temporally, professionally and personally

not be rejected as uneconomical if the collective agreement or the
ecclesiastical labor law regulation, according to which or according to which wages are paid, provides for an economic wage structure according to local standards. An objective reason is required for any additional remuneration to be paid to the employees. "

You have to be clear about this: Using the wording “if the collective agreement or the church labor law regulation, according to which or according to which wages are paid, provides for an economic wage structure according to local standards. For an additional remuneration of the employees, an objective reason is required, "one simply writes in that in the future" an economic remuneration structure according to local standards "will be the reference point for the non-recognition of economic efficiency - even if it is a matter of collective bargaining regulations, which are located higher.

If the law were to become law, this would also apply to the church-sponsored institutions, which allegedly have just prevented a generally binding collective agreement with slightly higher minimum wages than the minimum wage rates from seeing the light of day, because one fears that it might one day that will be the point of reference for the "cost bearers".

If this working draft stays that way, then you will actually get an orientation to the "local standards" - and in many regions these are conditions in facilities and services of private commercial organizations that can continue to act free of any collective agreements The tariff requirement is cleared with the draft from Spahn.

From the point of view of the church associations, that would be a really "great result" - they would have shot themselves twice in the knee, ten times because of the enormous damage to their image that was caused by the rejection of the collective agreement and then also because of today's lamented situation even worse regulation on the part of the legislature.

Of course, one has to point out that it is a “working draft” that will hopefully be corrected before it even takes on the status of a draft law.

But in any case, this really bold attempt is another example that in parts of politics, care, here care for the elderly, is not taken for full and obviously another slap in the face of the nursing staff is placed. At the same time, the wet dreams of private employers in care, who want to continue riding around in their collective bargaining wild west, are humbly incorporated into the upcoming care “reform” by parts of the ministerial bureaucracy, certainly under pressure from the political leadership - that is, from Jens Spahn. Jens Spahn does not only take care of pharmacists in a self-sacrificing manner (see the latest example of the minister's pranks on the street in the article "Stupid and stupid earned", which reports the monetary blessing with which the pharmacists distribute the "free" FFP2 masks have been made happy on the instructions of the minister himself), but he also takes care of certain employers in the care sector. But he doesn't care about the nurses, especially those who are at the bottom. Bad luck. And besides, they don't defend themselves either. And they don’t donate to the minister either.

General liability, care for the elderly, labor law, third way, trade unions, churches, care service, care home, care workers, care insurance, collective agreements, Verdi

This post was published here on July 1, 2018: Some want collectively agreed wages in geriatric care, others want employers to protect themselves against this. The way will not be an easy one. In it and in subsequent articles (for example on January 19, 2019: A nationwide collective agreement for inpatient and outpatient care for the elderly? It is and will remain complicated) it was described how difficult it will be to implement the laudable intention of making care for the elderly applicable to all employees Collective agreement to come. The field of inpatient and outpatient care is particularly mined in terms of collective bargaining policy, here are basically two blocks, the non-profit providers (with a special focus on the Catholic and Protestant providers) and the private commercial providers (municipal providers are only available in trace elements) . Almost half of the old people's homes, which are always at the center of public discussion, are already in private hands, with outpatient care services it is two thirds. And with a view to this side of the “market”, we have to state a quasi-tariff-free zone (which, by the way, is completed on the side of the employees by a disastrously low level of unionization). In addition, on the side of the non-profit providers, the two denominational heavyweights, represented by Caritas and Diakonie, are allowed to live in a special world, the so-called “Third Way”. According to this, the workers in denominational institutions and services are denied elementary employee rights (for example the right to strike) and the churches are largely allowed to regulate their affairs themselves and also to the exclusion of trade unions, even in the many areas of health and social services that are 100 percent off Tax and contribution funds are financed.

At this point, you have to remember the coalition agreement between the CDU, CSU and SPD from 2018, because they had set themselves this noble goal at the time:

»We want to increase the pay in the elderly according to the tariff. Together with our collective bargaining partners, we want to ensure that collective agreements in geriatric care are applied across the board. We want decent wages and good working conditions in care for the elderly. We create the legal requirements for this. "

As is so often the case, this reads easier than it is then to be implemented in real reality. The "normal" way of a general binding declaration (AVE) via § 5 TVG (collective bargaining agreement law) is blocked in the case of elderly care. The obvious ineffectiveness of the possibility of the "classic" general binding declaration is hidden in sentence 1 of § 5 paragraph 1 TVG: »The Federal Ministry of Labor and Social Affairs can conclude a collective agreement in agreement with a committee consisting of three representatives each from the top organizations of employers and employees ( Collective bargaining committee) at the joint request of the collective bargaining parties as generally binding. «" Agreement "is the key word here. In other words: here you can find the employer's right of veto in the existing system, because nothing works without their consent. They can refuse any application. In addition, it must be a "joint application" by the parties to the collective bargaining agreement.

As a kind of “bypass strategy”, the path via that remains Posted Workers Act (AEntG). A statutory ordinance based on the Posting Act would in fact be an alternative to the way through the Collective Bargaining Act. The advantage from the union's point of view: The Ministry of Labor could enforce the declaration of general binding even against the will of the employer. Already at an early stage it was pointed out that this is a rather "wobbly" construction that has been considered as an alternative strategy, because: This law should be able to set minimum standards for working conditions in certain industries, which then also apply to employees that are posted to Germany by employers based abroad for the cross-border provision of services, in particular in the main and ancillary construction trades. The law was originally a purely protectionist law that was intended to protect German building contractors and construction workers from cheap foreign competition.

Be that as it may: Recourse to the AEntG - which originally had and has a different intention than the AVE of an entire collective agreement - would perhaps be possible with a few legal contortions. But then at the latest the question already mentioned arises: Which collective agreement? There is simply no halfway relevant collective bargaining agreement in this tariff-free area (and at the same time because of the "third way": In the church-bound institutions and services there are employment contract guidelines, but no classic collective bargaining agreements that are negotiated between unions and employers' associations).

So some have set out to "get rid of this problem" by setting up a separate employers' association on the non-profit side (the BVAP - Federal Association of Employers in the Care Industry), which then works with the union ver.di has negotiated collective bargaining for the elderly. With the aim of creating a collective bargaining agreement that can then be used by the Federal Ministry of Labor or the Federal Government for a declaration of general validity, even against the resistance of the private commercial providers that are grouped in two employers' associations (on the one hand the bpa employers' association and on the other hand the AGVP - employers' association care) . They had already announced massive resistance in advance, among other things they wanted to sue against the attempt of an obviously expected general binding effect after it became known in January that the BVAP had reached an agreement with ver.di on a collective agreement (see: »The dispute about one Wage pact for care for the elderly is coming to a head: The care employers' association wants the Verdi union to be declared “incapable of collective bargaining” in court, ”according to an article in the FAZ on February 1, 2020: Nursing employers are suing Verdi care for the elderly, as it “cannot claim any assertiveness in the industry”, so the draft of an application to the regional labor court Berlin-Brandenburg. The press release of the employers 'association with the intention of bringing legal action is particularly interesting, because it is entitled: Employers' association care complains with the support of the Evangelical Home Foundation to determine the nullity of the tariff contract ver.di / BVAP. One or the other will have rubbed their eyes: With the support of the Evangelical Home Foundation, one of the very large church sponsors in Baden-Württemberg? A diaconal company or better: a group? Wait a minute, the two church organizations, i.e. Caritas and Diakonie, have to give their blessing to the advance towards a collective agreement in care for the elderly, which will then be made generally binding?

The private operators of nursing homes and nursing services are shooting at the bottom of the barrel against the possibility of being confronted with a generally binding collective agreement

The AGVP's announcement of a lawsuit after the adoption of a collective agreement for elderly care between the BVAP and ver.di was not the first threatening backdrop that was created. This post was already published here on March 30, 2019: Many people intend to make collective agreements in geriatric care generally binding (if there were any)? Fire free on the part of private employers. The creation of a threatening backdrop usually involves threatening the politically responsible with complaints against a planned measure and trying to underpin this threat with a paid study. At that time it was about the second employers 'association of private care providers, the bpa employers' association. He had an expert opinion on the constitutionality of declarations of general applicability in nursing care. With the unsurprising result: "The instruments of the declaration of general applicability and the extension of collective agreements are unsuitable and unconstitutional for achieving social and health-political goals," said Udo Di Fabio, a former judge at the Federal Constitutional Court (BVerfG), in front of the press. It would of course be nice if one could find out how the commissioned expert Di Fabio came to this ex cathedra proclaimed finding that all of this was unconstitutional.Otherwise one would be thrown back on the pure belief in the quality of preaching of an ex-constitutional judge. My remarks at the time at the end of the article are documented again here: »Now one would have to check the few indications that are given in the report, because only then can one determine the substance (lack of substance). This correct path is blocked, however, because: The bpa employers' association wants to keep the report under lock and key until there is a legal dispute about the planned legal submission. Oh yes. ”How practical for the client, who obviously only wanted to get a headline in the media and let critics starve to death on the outstretched arm.

Now there has actually been an agreement between the BVAP and ver.di since January 2021 (see key points on the collective agreement for geriatric care as of January 25, 2021). And now it would be time for the two employers' associations of private care providers to put their cards on the table and - that is their right - to take them to the courts in order to prevent the set of rules from becoming generally binding. Because for some time now, these two associations have been shooting from all available barrels against whatever comes up to them.

That would also be the right way to go, because one can make substantial inquiries to the agreed collective agreement beyond the trenches, on the one hand with regard to the obvious legitimation problem in view of the few and then also insignificant employers in the overall field of inpatient and outpatient care negotiates the BVAP, the Arbeiterwohlfahrt (AWO), the Arbeiter-Samariter-Bund (ASB), the Volkssolidarität and, as a special feature, the Lower Saxony Diaconal Employers' Association (DDN) with the ver.di union, which in turn has hardly any members who are involved in the care of the elderly ). On the other hand, one could and should critically examine the specific agreements in this collective bargaining system with regard to the level of minimum wages.

But it doesn't come to that anymore. Because the whole process, at the end of which a generally binding BVAP / ver.di collective agreement could stand (the subjunctive is underlined in bold), was stopped at the beginning and made impossible for the foreseeable future, unless there is a miracle. On the part of the church sponsoring associations. Because that surely surprised many:

The possibility of a generally binding collective agreement for the care of the elderly does not fail because of the private care providers, but rather the Catholic Caritas buries the advance that has long been called for by many

Charlotte Parnack, for example, speaks of the “insane following message” under the shortest possible heading Hypocritical: “There will not be a new nationwide minimum wage for nurses for the time being. And it is not the associations of greedy private home operators that are responsible for this - but rather the employers' side of the Catholic Caritas, which has brought the expansion of a new collective agreement to failure. " Dealing with the nursing staff. «What happened here on February 25, 2021 is illustrated in the following illustration: