The promotion of derogability clauses, which allow collective agreements to deviate from statutory protection to the detriment of employees, has been an issue in the political debate on German labour law for some 20 years. While such derogability clauses can effectively allow for flexibility at the company or sectoral level, there are differing views on their suitability for promoting collective bargaining. This article highlights the paradox of such derogability clauses: They are legitimised by the presumption of fairness that underpins collective autonomy; at the same time, they create incentives for employers that challenge the very presumption of fairness. All in all, they are not only inappropriate but dangerous if their sole purpose is to promote employer commitment to collective bargaining.
Eva Kocher (Tue,) studied this question.