Observation (CEACR) - adopted 1989, published 76th ILC session (1989)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Germany (Ratification: 1957)

The Committee notes the information supplied by the Government in reply to its previous comments and the observations made by the German Confederation of Trade Unions (Deutscher Gewerkschaftsbund (DGB)) dated 16 September 1988 on the application of the Convention.

The Committee recalls that its previous comments concerned the following matters:

- denial of the right of access to the workplace for trade union officials who do not belong to an enterprise;

- requisitioning of postmen, counter clerks and telephonists in the postal service with the status of civil servants (Beamte), who clearly do not act in a capacity as agents of the public authority, in order to replace striking postmen, counter clerks and telephonists in the postal service with the status of State manual workers or employees (Angestellte);

- the illegality of protest strikes.

1. Access to the workplace for trade union officials who do not belong to an enterprise. In relation to the Committee's comments concerning the denial of the right of access to the workplace for trade union officials who do not belong to an enterprise, in its last report the Government reiterates its previous statements to the effect that this question has not given rise to any dispute between employers and workers for a long time and adds that there have been no new developments in this respect.

However, the German Confederation of Trade Unions (DGB), intimates that it does not agree with the Government's reply. It explains that the Federal Constitutional Court handed down an order in 1981 establishing that the constitutional protection of the right to organise, and therefore of trade union activities, only applies to the central core of trade union activities (Kernbereich). Consequently, trade union activities only enjoy constitutional protection if they are considered to be indispensable for the maintenance of the trade union and to safeguard its very existence. This court order of the Court had the result of denying the right of access to the workplace for trade union officials who do not belong to an enterprise, and in particular to establishments belonging to the Church and other establishments. In the view of the DGB, as a result of this order, the Federal Government has not yet been able to adapt its legislation to the requirements of the Convention. Furthermore, the Federal Labour Tribunal and all the lower labour tribunals have felt bound by the order. According to the DGB, this denial of the right to organise is contrary to the provisions of Conventions Nos. 87 and 135. The DGB points out that Article 3 of Convention No. 87 affords workers' organisations the right to draw up their constitutions and rules, to elect their representatives in full freedom, to organise their administration and activities and to formulate their programmes, which signifies that the Convention guarantees trade unions the right to establish the limits that they intend to impose upon themselves regarding the development of their functions and the scope of their activities. However, this latitude is denied them by the order of 1981, especially in workplaces where labour disputes in fact arise and develop. The consequence of this order is that in the event of disputes at the workplace, the trade union is obliged to give proof that its activities are indispensable to maintain and safeguard its very existence. Furthermore, Article 3 implies that it is for trade unions to decide how they wish to organise themselves and whom they wish to appoint as their representatives in their trade union activities at the workplace. In view of the fact that in the Federal Republic of Germany there are no works unions and that trade unions are totally independent of individual enterprises, which, in the view of the DGB, is one of the essential prerequisites for trade unions' capacity to negotiate, the very structure of the trade unions, which are organisations that are independent of enterprises, means that the interests of the workers must, to a large extent, be represented by trade union officials who do not belong to the enterprise in question. Furthermore, by requiring that the internal trade union activities of an enterprise be carried out only by trade union officials belonging to the enterprise in question, the tribunals are automatically dictating to the trade unions the names of the persons who will represent the interests of the trade unions and the workers in an enterprise. Such an interpretation results in a situation in which only the workers directly employed by the enterprise can take part in trade union activities in the enterprise. This is liable to lead to the denial of the right to organise in enterprises where trade unions do not yet have any members or, where employees who are trade union members, when such exist, do not dare to make themselves known for fear of discrimination or reprisals by the employer. Finally, if there is only one unionised worker within an enterprise, under this order, all the trade union activities and recruitment activities in the enterprise should be entrusted to this one worker. In the view of the DGB, this situation is clearly contrary to Article 3 of the Convention, which guarantees trade unions the right to elect their representatives in full freedom without external interference and requires that public authorities refrain from any interference which would restrict this right.

The Committee duly notes the comments made by the DGB on that issue. It recalls that it has been commenting on this question for several years and therefore, once again, requests the Government to indicate in its next report the measures that it has taken to guarantee that trade union officials, even those not belonging to an enterprise, can if necessary have access to the workplace in an enterprise, and to bring its legislation into conformity with the Convention in this respect.

2. Requisitioning of civil servants (Beamte) to replace striking state employees and manual workers (Angestellte) in the public services. With regard to the DGB's allegations that postal employees were requisitioned to break a strike by postal manual workers and employees who are denied the right to strike, the Government indicates only in its report that the Federal Constitutional Court has still not handed down its order concerning the appeal made by the workers. The Government hopes that the Committee will understand that in these circumstances it can make no statement while the Federal Court has not given its verdict.

With regard to the intervention of civil servants as strike-breakers, the DGB states its concern that the Federal Constitutional Court has not yet handed down its order. It recalls that, while awaiting this order, the legal situation remains as it was. Civil servants may be requisitioned against their will to carry out tasks normally entrusted to state employees who are on strike. The Government has used this measure in the past and probably envisages having recourse to it once again in the event of industrial disputes in the public services. This has the result of jeopardising the constitutionally guaranteed right to strike of large sectors of the public services. In the view of the DGB, this problem has recently taken on greater significance in the postal service since two-thirds of employees there are civil servants (Beamte) and one-third is composed of manual workers (Arbeiter) and state employees (Angestellte). This means that the Government is able to overcome the effects of a strike by state employees by ordering civil servants to break the strike. This legal situation is particularly incomprehensible since the Government and the labour tribunals completely deny civil servants (Beamte) the right to strike and oblige them to act as strike-breakers in fields in which the work carried out does not even lie within the scope of their occupational activities and responsibilities.

The Committee recalls that it drew the Government's attention in its previous observation to the fact that, when national legislation prohibits or restricts strikes in the public service or in essential services, such restrictions become meaningless if the legislation defines the public service or essential services too broadly. Accordingly, any prohibition of strikes should be confined to public servants acting in their capacity as agents of the public authority or to services whose interruption would endanger the life, personal safety or health of the whole or part of the population.

The Committee therefore once again requests the Government to indicate in its next report the measures that it has taken to guarantee the right to strike to public servants who do not act in a capacity as agents of the public authority, and in particular postmen, counter clerks and telephonists in the postal service, whether they are considered to be state employees (Angestellt) or whether they have the status of civil servants (Beamte).

Furthermore, with regard in particular to the requisitioning of civil servants (Beamte) who are not acting in their capacity as agents of the public authority, to replace strikers, the Committee considers that such a measure may constitute a breach of Article 3 of the Convention, under which public authorities must avoid any intervention that could limit the right of workers' organisations to organise their activities and to formulate their programmes.

The Committee, like the Committee on Freedom of Association, recognises that normal community life can be disrupted when the operation of services or enterprises, such as transport or the postal service, is stopped. However, it cannot be said that the stopping of such services or enterprises creates in itself a situation of acute national crisis. Therefore, the Committee considers that the requisitioning of postal civil servants (Beamte) during a dispute in that service was such as to restrict the right to strike recognised to postal employees (Angestellte) as a means of defending their professional and economic interests. In other words, the recourse to public servants (Beamte) or to another group of persons to execute the functions not accomplished by reason of a labour dispute is only justified, if the strike is otherwise lawful, by the necessity of ensuring the operation of services or enterprises whose interruption would create a situation of acute national crisis; the fact that the Government had recourse to employees who are not part to a labour dispute to replace strikers may constitute a risk of restriction of the right to strike, affecting the free exercise of trade union rights.

However, the Committee recalls that it has always considered that, if the extent and duration of a strike could cause an acute national crisis, a minimum service concerning a specified category of workers could be maintained. In that case, however, the trade unions should be able to participate, should they so wish, in defining such minimum service alongside the employers and public authorities.

While noting that the Constitutional Court has not yet issued its verdict on the appeal brought before it on this matter, the Committee requests the Government to indicate in its next report the measures it has taken in this respect, since it is responsible for ensuring that effect is given to this Convention.

3. Protest strikes. Regarding the illegality of protest strikes, and in particular the reprisal measures that, according to the DGB, in its observation of 21 January 1986 and 16 September 1988 were taken against trade unionists undertaking a protest strike against the amendment of section 116 of the Employment Promotion Act, the Government refers in its report to its previous statements and indicates once again that the workers fully enjoy the right to strike and that it sees no reason to take measures in this field at the present time. It adds that no fines were imposed on the trade union officers and it specifies that labour tribunals do not have the power to inflict penal sanctions. In the view of the Government, the actual situation was that the trade union officials were prohibited by the labour tribunals from calling a protest strike, under penalty of a fine in the event of violation of this prohibition. However, the threat of a fine by a tribunal does not constitute in itself a sanction. The purpose of such a threat or such a warning is to give weight to the tribunal's injunction to refrain from such activities. However, the amount of the fine was not established. Concerning the DGB's allegation that trade unionists were dismissed because they had participated in a protest action, the Government indicates that it contacted the German Confederation of Employers' Associations, which informed it that it had undertaken a survey among its affiliated organisations which found that no worker had been dismissed because he had participated in a protest action against the amendment of section 116 of the Employment Promotion Act. If dismissal notices were sent out, they were probably either withdrawn or declared null and void by tribunals.

The DGB once again in its comments dated 16 September 1988 indicates that it considers that the prevailing legal situation in the Federal Republic of Germany, under which the Government considers protest strikes as illegal, is not compatible with the requirements of the Convention. The DGB recalls that the supervisory bodies have repeatedly drawn attention to the right of trade unions to call protest strikes, particularly with a view to expressing criticism of the economic and social policy of governments. The DGB also indicates that the protest strike to which it referred in its previous comments only lasted three hours during working time and that the tribunals ordered trade unions not to call protest actions under threat of heavy fines. In the view of the DGB, the Government's opinion that these fines do not constitute penal sanctions and were not imposed by courts of summary jurisdiction but by labour tribunals is not relevant. It is also irrelevant that the above fines were not, in the final analysis, inflicted. The fact that no coercive or disciplinary penalty was inflicted results only from the fact that the amount of the fines with which the trade unions were threatened was exhorbitant, since they amounted to DM500,000 for each offence, which lead the trade unions to obey the injunctions of the tribunals. With regard to the dismissal of workers who took part in the protest action, the judicial procedures that were undertaken in all cases resulted in the withdrawal of dismissal notices. In cases in which appeals were made before labour tribunals, the dismissal notices were declared null and void. However, the DGB regrets that the tribunals did not explain their decisions by stating that participation in protest actions was legal. On the contrary, they stated that in theory it was illegal and constituted a rupture of the employment contract. In certain cases, they even considered that the strikes in question were illegal political strikes. The dismissal notices were declared null and void because the tribunals considered that participation in these protest actions was an isolated offence and they took into account the length of service of the persons in question to declare insufficient grounds for their dismissal. Furthermore, the DGB indicates that several workers received warning letters threatening them with sanctions under the industrial relations legislation, including dismissal in the event of a re-occurrence of the offence. The threatened sanctions had the effect that several workers, who feared for their employment, refused to exercise their right to criticise the amendment of section 116 of the Act by taking part in the protest action. The pressure created by the warning letters is liable to have a negative effect in the future on possible trade union actions. For this reason, the DGB wishes to emphasise its criticism of the current legal situation with regard to restrictions on the right to strike.

The Committee notes with concern the statements by the Government and the DGB on these matters and recalls that it has on many occasions stated that trade union organisations must be able to call protest strikes, particularly to criticise the economic and social policies of governments, without being threatened by sanctions.