Observation (CEACR) - adopted 1998, published 87th ILC session (1999)

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

The Committee notes the information provided in the Government's report.

With respect to the denial of the right to strike in the public service, which the Committee has previously commented upon, the Committee notes that the Government in its report reiterates that civil servants, irrespective of their functions, do not enjoy the right to strike. In support of this position, the Government relies on provisions of the Constitution, and the fact that a civil servant has no entitlement to be appointed to a particular function or to continue performing previously assigned duties, since this is a discretionary power of the superiors. The Government stresses the importance of guaranteeing the mobility of officials, and contends that the mobility required by public servants would be seriously impaired if their legal status varied according to their individual functions and they were granted the right to strike depending on their duties. The Government indicates that the Public Service Reform Act, 1997 introduced improvements regarding officials' mobility with a view to ensuring optimal use of staff resources.

Furthermore, the Committee notes the Government's concern regarding the sanctioning of individual categories of officials in breach of the strike ban. The Government also states that even if there were political consensus, which there is not, on such a major decision as confining the ban on strikes to those exercising authority in the name of the State, it would require a long transitional period, given that the officials concerned would not consent to being dismissed from their office as civil servants in order to be transferred to salaried employee status. The Government also reiterates that, in its opinion, it could be deduced from the discussions that led to the adoption of the Convention that a ban on strikes for civil servants would not be in violation of the Convention.

The Committee recalls that it has always considered that the right to strike is one of the essential means available to workers and their organizations for the promotion and protection of their economic and social interests. While accepting that the right to strike may be restricted or even prohibited in the public service, the Committee has clearly established that such a limitation may be applied only in the case of public servants exercising authority in the name of the State. While noting the particular legal and policy considerations that have given rise to a broad restriction on the right to strike for the German public service, the Committee must, however, endeavour to maintain uniform criteria when determining the compatibility of legislation with the provisions of the Convention.

The Committee, therefore, once again requests the Government to indicate the measures taken or contemplated to ensure that public servants who do not exercise authority in the name of the State and their organizations, are not denied the right to organize their activities and formulate their programmes in defence of their economic, social and occupational interests by means which include strikes, if they so wish, pursuant to Articles 3 and 10 of the Convention.