Observation (CEACR) - adopted 1993, published 80th ILC session (1993)

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 its report.

1. Access to the workplace for trade union officials who do not belong to an enterprise. In reply to the Committee's previous comments in relation to this right of access, the Government once again considers that there is no need to amend its legislation in order to guarantee the right of access by union representatives unconnected with the workplace.

The Committee recalls once again that Article 3 of the Convention states that workers' organizations have the right to organize their administration and activities and that the public authorities should refrain from any interference which would restrict this right. The Committee would refer in this respect to the point of view of the German Confederation of Trade Unions (DGB), described in detail in its observation of 1989. The DGB stated that the fact that in the Federal Republic of Germany there were no work unions and that trade unions were totally independent of individual enterprises meant that the interests of the workers had to be represented by trade union officials who did not belong to the enterprise in question. However, an order of the Federal Constitutional Court handed down in 1981, had the result of denying the right of access to the workplace for trade union officials who did not belong to an enterprise and the Government, as a result of this order, had not yet adapted its legislation to the requirements of the Convention. While acknowledging that this right of access should not affect unduly the running of the enterprise concerned, the Committee requests the Government to indicate in its next report the measures that have been taken to guarantee trade union officials, including those who do not belong to an enterprise, access to the workplace if they consider it necessary.

2. Requisitioning of civil servants (Beamte) to replace striking state employees and manual workers (Angestellte) in the public service. In reply to the Committee's previous comments on the requisitioning of civil servants, the Government states that the Federal Constitutional Court has not yet handed down its ruling on this matter and it prefers not to comment on the question until a ruling is issued.

With respect to the right to strike of public servants who do not act in a capacity as agents of the public authority, the Government states that the prohibition against striking which arises from the Basic Law applies to all civil servants, regardless of what tasks they perform. The legal position of civil servants cannot be construed differently according to the area of activity since the Constitution regards the professional civil service as a unity.

The Committee recalls once again that the principle whereby the right to strike may be limited or prohibited in the public service or in essential services would 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. Therefore, the Committee would once again request the Government:

- to indicate in its next report the measures that have been taken to ensure that public servants who do not act in a capacity as agents of the public authority, are not denied the right to strike;

- to transmit to it the ruling of the Federal Constitutional Court when it has been handed down.