Definition and legal background of the “Third Way”
The term “Third Way” refers, in German labor law, to a particular form of regulating employment conditions in church and religious community institutions, which differs from the principles of the first (individual agreement) and second way (collective agreement). It is particularly applied in the area of churches, their welfare organizations (such as Caritas and Diakonie), and other religious communities. The Third Way shapes the labor law system of the churches and expresses the right of religious communities to self-administration, according to Article 140 of the Basic Law (GG) in conjunction with Article 137 of the Weimar Constitution (WRV).
Historical development and legal foundations
Historical origins
The legal concept of the Third Way has developed since the 1950s to give effect to the constitutionally guaranteed right of churches to self-determination and self-administration in their internal affairs, including employment conditions. The main legal basis is Article 140 GG in conjunction with Article 137(3) WRV, according to which every religious society manages and administers its own affairs independently within the limits of the laws applicable to everyone.
Relationship to the First and Second Way
Under the First Way, employment conditions are individually negotiated between employees and the employer within the framework of the German Civil Code (BGB). The Second Way is characterized by the independent, collective negotiation of collective agreements between trade unions and employer associations. In contrast, under the Third Way, employment contract conditions are jointly discussed and decided in commissions with equal representation, consisting of representatives of employers and employees.
Organization and procedures of the Third Way
Commission model
At the heart of the Third Way is the labor law commission system. Here, representatives of both the employee and employer sides are delegated in equal measure to special labor law commissions. These jointly decide on the appropriateness, amount, and other framework conditions of remuneration, working hours, and further employment conditions.
Decision-making procedure
The commissions are strictly bound to the principle of consensus or, alternatively, qualified majorities when making decisions. The results of negotiations are binding for all institutions of the contractual church bodies as well as their employees. Structured arbitration procedures before independent arbitration bodies are provided to resolve any disputes.
Exclusion of the right to strike and industrial action
A key distinction of the Third Way from the Second Way is the fundamental exclusion of industrial action, especially strikes and lockouts. German labor and constitutional court jurisprudence recognizes that this ban on strikes is lawful, provided that an effective system of participation and co-determination is guaranteed, in particular through the commission system and independent arbitration (see, among others, Federal Labor Court judgment of November 20, 2012, 1 AZR 179/11).
Legal effect and scope
The regulations decided by the labor law commissions apply directly and obligatorily to the respective church institutions and their employees. Legally, they are general terms and conditions, as they do not have normative effect like collective agreements, but instead become binding through the employment contract’s reference.
Constitutional dimensions
Right of churches to self-administration
The right of churches to self-administration under Art. 140 GG, Art. 137(3) WRV expressly includes the right to independently determine employment law regulations. This right is implemented through the Third Way. However, the constitutional order requires that church employment law regulations must be consistent with national labor law and must not disproportionately restrict the fundamental rights of employees.
European law implications
Even taking into account European Union law, especially anti-discrimination directives, the Third Way is recognized by the German legal system, provided that adequate protection of individual employee rights is ensured. Key decisions of the European Court of Justice (ECJ) require state oversight to prevent possible discrimination or disproportionate restrictions.
Practice and criticism
Areas of application
The Third Way is particularly applied by the two major Christian churches in Germany (Roman Catholic and Protestant) and their welfare organizations (Caritas, Diakonie). The affected institutions employ a significant number of workers in the social and healthcare sectors.
Critical discussion
The Third Way has been at the center of public and academic debate for years. Criticism focuses in particular on the ban on strikes, the lack of collective bargaining autonomy, and the binding nature of commission decisions. Proponents emphasize the preservation of ecclesiastical independence and religious identity, since employees are not merely regarded as functionaries of traditional companies.
The legislature and case law recognize the legitimacy of the Third Way under strict conditions, but insist on respecting fundamental rights of protection for employees and on effective participation procedures.
Summary
The Third Way is an independent and legally recognized system for regulating employment conditions in church and religious community institutions. It is based on a commission system with equal representation and largely excludes the right to take industrial action. On a constitutional level, this form of regulation is closely linked with the church’s right to self-administration under Article 140 GG. The legal legitimacy of the Third Way exists in the tension between collective autonomy, individual employee rights, and the state legal system, and is subject to ongoing developments and oversight.
Frequently Asked Questions
What are the legal bases governing the Third Way in Germany?
The so-called Third Way in Germany is primarily shaped by constitutional and statutory provisions. Its main foundation is the right of churches and religious communities to self-determination enshrined in Article 140 GG in conjunction with Article 137(3) WRV. Under this provision, the churches are free to self-govern their affairs within the framework of the laws applicable to all. Their own affairs expressly include employment law, in particular the right to determine the terms of employment independently of state regulations (especially the Collective Bargaining Act). These principles are further detailed by § 118(2) Works Constitution Act (BetrVG), § 112 Federal Staff Representation Act (BPersVG), as well as § 53 State Staff Representation Act (LandespersVG), granting religious societies and their institutions a special status in respect to the application of collective labor law. Further legal framework is provided by labor court jurisprudence, particularly that of the Federal Labor Court and the Federal Constitutional Court, as well as various state laws and anti-discrimination legislation, which require church regulations to comply with the general principle of equal treatment.
Are there exemptions or restrictions in the application of the Third Way?
Although the right to self-determination is broadly defined, the Third Way is not unlimited. Its application is bound by the principle of proportionality and the general principle of equal treatment (Art. 3 GG). Legal boundaries are particularly set by European law such as the Working Time Directive, the Directive on Equal Treatment in Employment and Occupation (Directive 2000/78/EC), and the European Convention on Human Rights. Thus, employment law regulations issued by the church must comply with general labor and social protection laws and must not, in practice, exclude essential fundamental rights of employees—for example, with respect to freedom of expression, freedom of association, or protection against discrimination. Some areas, such as protection against dismissal or the right of co-determination, cannot be completely excluded, but are instead subject to judicial review.
To what extent is freedom of association under Article 9(3) GG affected by the Third Way?
Freedom of association guarantees all employees the right to form associations to protect and promote working and economic conditions. In the context of the Third Way in church institutions, however, the right to strike is restricted since employment conditions are determined not through collective bargaining and industrial action, but by parity-based labor law commissions. This distinction is recognized as lawful as long as the Third Way is designed as an equivalent alternative to collective bargaining autonomy and effective participation of employees in determining work conditions remains guaranteed. The European Court of Human Rights and the Federal Constitutional Court regard the exclusion of union industrial action under such circumstances as legitimate, provided employee participation rights are adequately realized.
How is employee co-determination legally guaranteed under the Third Way?
Employee co-determination under the Third Way is generally implemented via so-called labor law commissions, in which employer (service provider) and employee (service recipient) representatives participate in equal numbers. These commissions are legally established within the churches’ own labor law regulations, for example, in the “MAVO” (Employee Representation Order of the Catholic Church) or the “MVG-EKD” (Employee Representation Act of the Evangelical Church in Germany). The commissions negotiate and establish rules on remuneration, working hours, and other employment conditions. The selection of commission members is democratically legitimated, with employees generally electing their own representatives. In addition, a church arbitration process may be available in case of disputes. Ultimately, these commission decisions are also subject to the standards of national labor law and review by labor courts.
How does the Third Way relate to state labor courts?
Although the churches enjoy extensive autonomy in regulating employment relationships through the Third Way, their decisions are not exempt from state oversight. In principle, employees can take labor disputes to the state labor courts, which then review whether ecclesiastical regulations are compatible with superior national or European law. In particular, compliance with mandatory labor law protection provisions, employee rights and anti-discrimination regulations, as well as the right to a fair hearing (Art. 103 GG), is also guaranteed in church labor law. However, labor courts regularly show deference to the church’s right of self-determination and only check whether the regulations created by the churches meet the legal minimum standards and sufficiently respect the religious self-concept.
Can employees in church institutions challenge decisions of the labor law commissions?
Employees of church institutions have the right to seek judicial review of decisions made by labor law commissions if they feel their individual or collective rights have been infringed. In such legal proceedings, it is examined whether the commissions were constituted in accordance with statutory rules, whether employees’ procedural rights were upheld, and whether the rules adopted comply with national and European law. The courts, however, limit themselves to legal review and only intervene when there are obvious violations of mandatory law, prohibitions on discrimination, or procedural requirements. The substantive appropriateness of the regulations remains the prerogative of the church, as long as there are no breaches of fundamental rights.
What are the consequences of violations of state labor law under the Third Way?
If a church institution violates state labor law under the Third Way, various sanctions may apply. For instance, if mandatory labor law provisions such as minimum wage, working time protection, equal treatment, or co-determination rights are breached, those concerned may seek redress in labor courts. Depending on the nature of the violation, this could lead to the invalidity of specific contractual clauses, back-payment of wages, or recognition of rights under the Works Constitution Act. Serious violations can also lead to fines or further sanctions such as withdrawal of funding, particularly if the General Equal Treatment Act (AGG) or public funding requirements are affected. In the long term, the institution must adapt its employment regulations to continue making use of church-specific labor law exceptions.
