Union Dispossession of Labour Protection: A Paradox, in Two Legal Systems

Though the protections of employment law are usually not subject to waiver by the employee, some countries allow unions to negotiate to modify or abrogate then. This article looks at two: the United States and Germany. It points to a critical distinction between the legal capacity to make collective bargaining agreements having that effect in Germany as compared to the United States. Notwithstanding those differences, it argues that what their experience teaches in common is that such an opt-out can benefit employers by giving needed and mutually understood flexibility, and can benefit unions as institutions by making it advantageous for employers to bargain with them, but that considerable care must be taken when such license is legislated lest discrete or insular groups be dispossessed of a valuable right in a process that advantages employee coalitions that exclude them, or the union as an institution, at their expense. Public Goods, Dispossessive Law, Tarifdispositives Arbeitsrecht, Trading Material, ‘Sweetheart’ Agreements