There's a strike again. Also in hospitals. This is not a labor dispute like any other. Because it is always about the care of patients, about health and life that is impaired. That cannot always be ruled out. But the right to strike is a fundamental right. Anyone who takes freedom of association seriously will not call lightly on interference with this necessary means of achieving appropriate collective agreements. However, it must also be taken into account that, like every fundamental right, freedom of association is also embedded in a system of other fundamental rights. One such fundamental right is the protection of life and health.
Even more: It is – as the Federal Constitutional Court once put it – the basis for the exercise of all other fundamental rights. The social partners do not act in a vacuum, and so the common good must always be taken into account. The conflict of this fundamental rights position has become clear in the labor disputes in the health sector in the last year, e.g. B. the twelve-week strike by ver:di at the six university hospitals in North Rhine-Westphalia.
These maximum care hospitals have been on strike in order to achieve decent working conditions for nurses. With each day of the strike, this necessarily impaired the task of these hospitals - and this was precisely what the union wanted, since there was otherwise no pressure on the employer.
However, the pressure on the hospital leads to pressure on patients and, inevitably, with an increasing waiting list with regard to operations and other treatments, it also always leads to progressive danger and - it is hard, but true - in some cases to serious danger to health or life .
This was also impressively demonstrated in the strike at the university hospitals last year, when shortly before the end of the strike over 2000 patients were on waiting lists for operations in the university hospital in Bonn alone. Since this has the third highest average case severity (case mix index) in Germany, the operations of the patients on the waiting list were not only 100 percent medically necessary, but very often really urgent, even in non-acute emergencies.
There were calls for help from patient representatives. The Spiegel headlined vividly: "At the moment both are suffering. The patients and the staff.” There are not only emergencies where medical interventions have to take place immediately, and on the other hand so-called elective interventions, which can take place at any time after the need for treatment has been determined.
By far the largest percentage of patients on the waiting list for surgery are at progressive risk, so that before the planned but postponed procedure an irreversible risk occurs - or even, and this cannot be ruled out, the death that was avoidable.
The postponement of planned interventions can also cause various health risks. For this reason, temporary injunctions against the work stoppages were applied for by the University Hospital Bonn last year. And the court increased the number of operating rooms to be kept operational from what the unions had allowed in the emergency service agreement. Such an extension was judged necessary to make the strike proportionate. Not every judge will have felt comfortable having to act as an auxiliary mediator in the public interest.
These experiences have made it clear that such solutions of binding and appropriate emergency services must already exist before the strike. Better regulations are therefore needed that, on the one hand, continue to make strikes possible in the health care system, but also take the interests of the patients – who are the only ones at stake – into account appropriately.
The strike is a "sharp weapon" (Federal Labor Court) and it should only be used when it is actually necessary. Proposals to achieve an appropriate balance of interests here have been on the table for many years. So far, there has been a lack of courage to sift through them, weigh them and, if necessary, implement them.
In particular, a mandatory agreement on emergency work seems to make sense – if necessary with judicial mediation, before a strike is allowed to take place. In practical terms, this means that something like an arbitration board is needed to agree on adequate emergency services.
It would also be desirable to push the strike back as far as possible: before patients can be affected, the opponents must have tried to reach an agreement in arbitration – and if the arbitration award is then felt to be inappropriate, then they like it call the union to go on strike. But only then.
All this would not be a German special way. Other countries have also found their own regulations to protect patients in the healthcare sector - partly as a law, partly as a voluntary commitment by the collective bargaining partners, which then became generally binding through law (as in Ireland). The German legislature can take this as an example.
Better rules are needed for everyone. And this certainly also requires political courage, but also a willingness to engage in dialogue and the willingness to take everyone's legitimate interests into account. So politics does not have to start from scratch. Other countries are showing which instruments can be used to find gentler ways to appropriate collective agreements.
In France, for example, health professionals working in public or private healthcare facilities must give five days' notice of a strike. Other countries - e.g. Belgium - have longer deadlines of up to two weeks. Also in Belgium, an emergency service must be provided in the health sector in the event of a strike, similar to that in Germany. The upside, however, is that joint committees of employers and workers decide on critical service needs and how to meet them during the strike. The state only intervenes if the parties cannot agree. Only after an adequate emergency service has been established can a strike be held.
So many things are conceivable. What is the best way in the end should be checked in dialogue with all those involved. Blinders and bans on thinking disturb. Protecting life and health is worth every effort.
From left: Prof. Wolfgang Holzgreve is medical director and chairman of the board at the University Hospital Bonn. Hermann Gröhe is deputy chairman of the CDU/CSU parliamentary group. Prof. Gregor Thüsing is Director of the Institute for Labor Law and Social Security Law at the University of Bonn.