Current decision of the BAG: Employer does not have to provide the union's business email addresses for membership recruitment (BAG, judgment of 28.01.2025-Az. 1 AZR 33/24)
In an interesting decision, the BAG restricted the recruitment of unions in companies.
An employer is not obliged to inform the union's union for him for him. Such a desire cannot be based on the freedom of coalition operating guaranteed by Art. 9 Para. 3 GG.
The parties have argued about the possibilities of the plaintiff union to operate digitally in the company of the employer. The union responsible for the employer was of the opinion that it must be granted an “access” to the employer's communication system for recruitment.
Around 5,400 employees work in the employer's operation. A significant part of the internal communication takes place digital-among other things via e-mail, the Viva Engage and the Group-wide intranet developed by Microsoft 365. Most employees have a-name-related-e-mail address generated under the employer's domain.
The union has taken the view that it must be granted an "access" to these communication systems for recruiting membership. The employer is obliged to send the union all operational email addresses of the employees. At least she has such a claim to send up to 104 emails a year with a size of up to 5 MB. In addition, she should be granted access as a "internal user" to the group -wide network at VIVA Engage so that she could set a certain number of advertising contributions there. In addition, the employer must make a link with a website of the union responsible for the company on the homepage of his intranet.
The BAG also ultimately dismissed the union's complaint.
Art. 9 Para. 3 GG generally guarantees an union to use operational email addresses of employees for advertising purposes and for their information. However, the courts in the design of the freedom of the coalition also have the fundamental rights of the employer's fundamental rights affected with such a requested fundamental rights from Art. 14 and Art. 12 Para. 1 GG as well as the also affected fundamental rights of employees from Art. 2 Para. 1 IVM. Art. 1 Para. 1 GG or Art. 8 of the Charter of the fundamental rights of the European Union. You have to compensate for all affected positions in the way of the practical concordance so that, despite your contrast, you become as effective as possible for everyone involved. Based on this, the application application directed to a mere transmission of the company email addresses was unsuccessful.
The union's application for a complaint, which aimed at notifying the company email addresses and tolerating their use to a certain extent, was also unfounded. The burdens of the employer associated with the performance and toleration request affect them significantly in their constitutionally guaranteed economic freedom of activity and justify their overwhelming need for protection against such use. The result does not result in the result that this would not be possible for the union to use the employer's email system for advertising or information measures. It is open to ask the employees on site in the company about their company email address. This also represents the gentlest compensation for their concerns.
The complaint aimed at in the intranet of the employer was also unfounded.
As an employer, do you have any questions about the right to work? Lawyer/specialist lawyer for labor law Golo Busch, Dortmund location, will be happy to answer your questions about your right to work.
