Observation (CEACR) - adopted 2000, published 89th ILC session (2001)

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.

Articles 3 and 10 of the Convention. Right of public service organizations to formulate their programmes in defence of the occupational interests of their members including by recourse to collective action and strike.  With respect to the denial of the right to strike of civil servants ("Beamte"), 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. The Government points out that the ban on strikes for civil servants ("Beamte") must not be assessed in terms of whether the individual civil servant is also entrusted with sovereign tasks. The status of civil servant ("Beamte") is the sole criterion for assessing the rights and obligations of a civil servant. Therefore, in view of the tendency to privatize public functions, consideration could be given in the future to transferring these functions to workers or employees who do not have the status of civil servant. As a result, those functions would be carried out by workers and white-collar employees who do have the right to strike. The growing tendency to delegate functions that do not belong to the State’s sovereign field of activity to public service employees can also lead to a decrease in the proportion of civil servants. However, the Government concludes that this does not affect the legal status of civil servants in employment at the present time, since they have obtained that status voluntarily and, according to civil service law, they cannot be forced to relinquish that status.

While noting the Government’s explanation, the Committee recalls, however, that since 1959 it has been expressing the opinion that the prohibition of strikes by public servants other than public officials exercising authority in the name of the State may constitute a considerable restriction of the potential activities of trade unions and that this restriction may run counter to Article 8, paragraph 2, of the Convention (see General Survey on freedom of association and collective bargaining, 1994, paragraph 147). The Committee must insist on the importance of taking the necessary measures so as not to sanction public servants ("Beamte") who are not exercising authority in the name of the State (postal service employees, railway employees, teachers or others) for taking collective action, which includes recourse to strike, if they so wish. The Committee requests the Government to indicate any measures taken in this respect in its next report.