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

Social Security (Minimum Standards) Convention, 1952 (No. 102) - Germany (Ratification: 1958)

1. The Committee has examined the Government's detailed report and notes with interest the improvements in the social security scheme and particularly the increases in the level of benefits and the new allowances for dependent children. The Committee hopes that the Government will also be able to provide information on the effect given to Part VIII of the Convention (Maternity benefit), which has also been accepted by the Federal Republic of Germany.

2. Part XIII (Common provisions), Article 69(i), of the Convention. With reference to its previous observations concerning section 116 of the Employment Promotion Act and the Regulations issued under this section (which provides for the suspension of unemployment benefit in certain cases where workers who have lost their employment as a result of a trade dispute are not directly implied in the dispute, whereas under the Convention, these benefits may only be suspended if the person concerned has lost his employment as a direct result of a stoppage due to a trade dispute), the Committee notes the Government's explanations on the scope of the amendments made to the above-mentioned legislation by the Act of 15 May 1986 to ensure the neutrality of the Federal Employment Institute (BGBl, Part I, page 721). According to the provisions of the new legislation and the Government's explanations, unemployment benefit due to workers who have lost their employment as a result of a trade dispute, but who are not directly involved in the dispute is suspended: (a) when the enterprise in which the persons concerned have been employed falls within the territorial and occupational scope of the collective agreement which gave rise to the dispute, and (b) when the enterprise in question does not fall within the territorial scope of the collective agreement but belongs to an occupational sector covered by it. In the latter case, benefits are only suspended if a claim which is "similar" - but not necessarily identical - in nature and extent to one of the main claims giving rise to the dispute has been made and if the results of the dispute will in all probability be endorsed, "in essential respects", by the collective agreement that is not the subject of dispute but applies in the territory where the enterprise is located.

According to the information contained in the report and the provisions of new subsections 5 and 6 of section 116 of the Employment Promotion Act, the question whether: (a) the claim of the workers who were not directly involved in the trade dispute in question is similar - but not necessarily identical - in nature and extent to one of the main claims that gave rise to the dispute; and (b) the results of the conflict will in all probability be taken into account "in essential respects" by the collective agreement applying in the territory where the enterprise which employed the workers is situated is determined by a decision of the competent body of the Federal Employment Institute, namely, the Neutrality Committee. This Committee is made up of employers' and workers' representatives who sit on the above Institute's Executive Board, and only issues a ruling after hearing the opinion of the umbrella organisations of the parties to the collective agreement which was the subject of the trade dispute in question. These organisations may also institute proceedings against the ruling before the Federal Social Tribunal (Bundessozialgericht). Furthermore, in the event of a work stoppage, the employers must prove before the Federal Employment Institute that the loss of employment is indeed due to a trade dispute, and their notification must be accompanied by a statement of the views of the representatives of the workers concerned.

The Committee takes due note of the explanations provided in the report. It recalls, however, that this matter has been the subject of comments from workers' organisations, the most recent of which (1988) was submitted to the International Labour Office by the German Trade Union Confederation (DGB) in connection with the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), which concerned in particular the amendments made to section 116 of the Act of 1969 by the Act of 1986 concerning the neutrality of the Federal Employment Institute. The Committee therefore requests the Government to continue to provide information in its future reports, on the way in which practical effect is given to the provisions of section 116 of the Employment Promotion Act and the last subsection of section 133 of the same Act, as amended by the Act of 1986 mentioned above. (Please provide also copies of any rulings issued by the Neutrality Committee.)