Observation (CEACR) - adopted 1997, published 86th ILC session (1998)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Germany (Ratification: 1956)

The Committee notes the Government's report. Following its previous observations, it also notes the conclusions of the Committee on Freedom of Association in Case No. 1820 (see 302nd Report, paragraphs 80 to 111, approved by the Government Body at its March 1996 session).

As regards teachers, the Committee, referring to the above-mentioned Case, notes that the Committee on Freedom of Association stressed that "teachers do not carry out tasks specific to officials in the State administration; indeed this type of activity is also carried out in the private sector. In these circumstances (it) stresses the importance that teachers with civil servant status should enjoy the guarantees provided for under Convention No. 98." The Committee on Freedom of Association further stated that "within the framework of the public service regulations (in which Parliament adopts legislation in the final instance), it might be necessary for collective bargaining to be conducted by means of special procedures and in this respect, Convention No. 98 allows a certain flexibility ... Therefore, within the overall framework of public service regulations established by the Constitution and German legislation, it should be possible, while maintaining the budgetary prerogatives of the legislature, to find a formula which would not only allow for a mere hearing but also the possibility for teachers with civil service status to bargain collectively."

The Committee notes that the Government states in its report that the procedure for the participation of central trade union organizations in the general regulation of conditions for civil servants pursuant to section 94 of the Civil Servants Act is the object of an agreement between the Federal Ministry of the Interior and the central organizations of the relevant trade unions, which was concluded in 1993 and revised in 1996. The Government adds that similar agreements exist in the Länder. It is therefore of the view that the participation of the central trade union organizations in the regulation of working conditions for civil servants in Germany, while differing from the collective bargaining that takes place for employees in the private and public sectors, occurs in such a manner that there is no violation of Article 4 of the Convention.

While taking due note of the Government's comments, the Committee recalls that it could not allow the exclusion from the terms of the Convention of large categories of workers employed by the State merely on the grounds that they are formally placed on the same footing as public officials engaged in the administration of the State and who, by the functions, are directly employed in the administration of the State -- such as, for example, civil servants employed in Government ministries and other comparable bodies (see 1994 General Survey on freedom of association and collective bargaining, paragraph 200). The Committee considers, like the Committee on Freedom of Association, that teachers carry out duties different from officials in the state administration; indeed, this type of activity is also carried out in the private sector and therefore teachers with civil servant status should enjoy the guarantees provided for under Convention No. 98.

In the light of the above comments, the Committee would invite the Government, together with the trade union organizations concerned, to study ways in which the current system could be developed so as to ensure a proper application of the Convention.