Direct Request (CEACR) - adopted 2002, published 91st ILC session (2003)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Germany (Ratification: 1961)

The Committee notes the Government’s report and the attached documentation.

1. Discrimination on the ground of political opinion. Further to its previous comments concerning the access to the public service of persons who were involved in the activities of the Ministry of State Security or the Office for National Security of the former German Democratic Republic, the Committee notes from the Government’s report that there has been no change in the jurisprudence of the higher courts. In respect to its previous request to the Government to provide information on the number of applications refused employment on the basis of the decision issued by the state government of Mecklenburg-Vorpommern on 23 February 1999 concerning the screening of candidates for civil service positions, the Committee notes the Government’s statement to the effect that it had no information at its disposal to indicate that said decision had led to a rejection of applicants. The Committee requests the Government to continue to provide information on any new court decision involving dismissal or failure to hire a candidate for the public service on the basis of his or her past political activities, and on any rejection of a candidate for the public service on the basis of the 1999 screening decision of the state government of Mecklenburg-Vorpommern.

2. Discrimination on the ground of sex. The Committee thanks the Government for providing a copy of the fourth report of the federal Government on advancement of women in the civil service (Bundesdienst) covering the period from 1995 to 1998. The report concludes, inter alia, that the share of women among part-time workers remained very high throughout the service. It calls for vigilance in ensuring non-discriminatory recruitment procedures, as the rate of recruitment of women decreased to 45.9 per cent from rates of more than 50 per cent in previous years. No further progress was made as far as the representation of women in managerial positions in the higher service is concerned. In this context, the Committee notes with interest the entry into force on 5 December 2001 of the Act on the Implementation of Equality of Treatment of Women and Men of 30 November 2001, which replaces the Act on the Advancement of Women which had entered into force in 1994. The Committee notes that the new Act marks a shift from "advancement of women" to an approach towards "equal rights of women and men". The Act is more stringent than the previous legislation, prohibits direct and indirect discrimination, provides for further measures to reconcile family and professional life of men and women, and replaces the commissioners for women’s affairs by equal treatment commissioners with a strengthened mandate. The Committee notes in particular that section 8 provides for preferential treatment of women in decisions concerning appointment and promotion where women are underrepresented in a given area, the female and male candidates are equally qualified, and if there are no overriding reasons for the male candidate. It also notes that under section 9(1) the length of service, the age of the candidate, and the time which has elapsed since the candidate’s last promotion are to be considered in the determination of the qualification only if they are relevant for the aptitude, performance and capability of the candidates. Noting that section 4(7) exempts from the definition of indirect discrimination any measure, which is proportionate and necessary, as well as justified by objective reasons not related to the sex, the Committee hopes this exception will be applied in accordance with the Convention and limited to matters related to the inherent requirements of the job. The Committee is looking forward to receiving the first report on the implementation of the Act as provided for under section 25. The Committee asks the Government to provide information on the application of the new equality legislation in practice, including administrative and judicial decisions, and its impact on gender equality in respect of employment in establishments to which the Act applies. Please supply statistical data disaggregated by sex on the composition of the federal and Länder civil service and of the private sector by occupation and level of responsibility.

3. The Committee thanks the Government for providing a copy of its "Women and Work" programme, as well as the report on measures taken to enhance equality of opportunity of women and men. In this respect, the Committee notes that the programme combines a gender-mainstreaming approach with concrete measures and projects to promote equality. It notes the steps taken to promote equality in the private sector, including a dialogue with enterprises and trade unions and that preparations under way for equal opportunity regulations for the private sector. The Committee requests the Government to keep it informed on the progress made in drawing up such regulations, as well as in reviewing the current legislation on sexual harassment at work. Please also continue to provide information on the implementation of other measures under the "Women and Work" programme and any impact they have had on improving the labour market position of women.

4. With regard to its previous comments with respect to ensuring that transfers from full-time to part-time work are voluntary, the Committee notes with interest the entry into force on 1 January 2001 of the Act on part-time and fixed-term work (BGBl. I No. 59/2000). Under the Act, part-time workers cannot be treated different, in respect to remuneration and benefits, than full-time workers on account of their part-time status, unless there are objective grounds for such treatment (section 4). The Committee notes that anyone refusing to change from full-time to part-time work or vice versa is protected from dismissal (section 11) and that employers may not disadvantage employees asserting their rights under the Act (section 5). As regards the civil service, the Committee notes that the voluntary nature of part-time work is established by legislation which requires a formal request for a part time arrangement by the official, and that the salaries and benefits received by civil servants working part-time are reduced in proportion to their working time, while allowances relating to sickness, nursing, birth and death are the same as for full-time officials. The Committee also notes that section 15 of the Act on the Implementation of Equality of Treatment of Women and Men prohibits any disadvantage due to part-time work.

5. The Committee notes the information provided in respect to promoting the employment of young men and women through vocational training. It notes with interest that the Emergency Programme for the Reduction of Youth Unemployment - Training, Qualifications and Employment for Young People has been extended until 2003. The Committee also notes that 39.3 per cent of the persons participating in the programme were women, which corresponds to the rate of female youth unemployment. While previously many more young women than men sought vocational guidance, the Committee notes that during 1999-2000 half of the persons seeking vocational counselling were women. Noting the Government’s statement that the training situation continued to improve in 2000 but was not yet satisfactory, particularly in the new Länder, the Committee requests the Government to continue to provide information on measures taken or envisaged in this respect, including indications concerning results achieved. Please also provide statistical information on the number of young women engaging in training in occupational sectors traditionally dominated by men and on the number of men and women integrated into the labour market following vocational training.

6. Discrimination on the grounds of race, colour, religion or national extraction. The Committee notes the concerns of the European Commission on Racism and Intolerance (ECRI) concerning the access of individuals of foreign origin to the labour market and that in ECRI’s view indirect and direct discrimination frequently plays a large part in explaining this phenomenon [CRI (2001) 36, paragraphs 27 and 28]. In this context, the Committee notes that the Government is envisaging an anti-discrimination act prohibiting discrimination on the grounds of sex, religion, political opinion, disability, sexual orientation, race and ethnic origin, in line with the relevant EU directives, and asks the Government to keep it informed of the progress made in this respect. The Committee also requests the Government to provide information on measures taken or envisaged to ensure equal access to employment of members of minority groups, including in particular persons of foreign origin and the Roma, irrespective of race, colour or national extraction. Noting that statistical information on the situation of minorities in respect to employment is not available, the Committee recalls the importance of such information as to be able to able to plot trends and assess the impact of the national non-discrimination policy. It requests the Government to indicate how it is monitoring the employment situation of minorities in order to ensure their equal access to employment. Please also provide statistical or other information on the participation of minorities in training courses and a copy of the action programme to improve training opportunities for young migrants, which was adopted in the framework of the Alliance for Work in 2000.