Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

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

The Committee takes note of the Government’s report and its reply to the 2006 comments of the International Confederation of Free Trade Unions (ICFTU, now ITUC – International Trade Union Confederation). The Committee further notes the comments submitted by the ITUC of 28 August 2007 concerning issues already raised by the Committee.

The Committee recalls that it has been requesting for a number of years the adoption of measures so as to recognize the right of public servants (“Beamte” including postal workers, railway employees and teachers among others) who are not exercising authority in the name of the State, to have recourse to strike action. In this respect, the Committee had noted in previous comments that innovative developments took place with a view to devising draft legislation on the comprehensive modernization of the law governing civil servants, in collaboration with the trade unions concerned, in order to gain broad support for the considerable changes in conditions of employment involved in the new draft legislation.

The Committee notes that the Government indicates that: (1) the draft legislation concerning public servants was dropped following the change in Government: (2) Convention No. 87, by virtue of its very origin, does not have any bearing on the prohibition of strike action by civil servants and strike action for civil service is subject to a general prohibition under the terms of constitutional law: (3) the legal status of civil servants must, under constitutional law, be the same for all and there can be no distinction in respect of the ban of strike according to the functions of individual categories of civil servants and there is no differentiation by functional category with regard to the extent to which they are bound by their obligations. (4) Civil servants have no particular right to carry out a particular task or to continue to carry out what they regard as their particular function and it is for their superiors to decide where to deploy them, and to transfer them within a department as required. (5) The mobility required by the public administration would be significantly impaired if the legal status of civil servants differed according to their particular functions. (6) The call to accord some civil servants the right to strike, depending on their particular functions, is therefore not consonant with the fundamental principles of the German civil service and would be detrimental to the effective and responsible discharge of the administration’s duties in the general public interest.

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. In the Committee’s view, postal workers, railway employees and teachers among others are not included in this category and should therefore have the right to strike, although the maintenance of a minimum service may be foreseen in the event of strikes in these sectors.

In light of the foregoing, the Committee requests the Government to take the necessary measures to ensure that public servants who do not exercise authority in the name of the State can have recourse to strike action in defence of their economic, social and occupational interests. The Committee requests the Government to indicate in its next report any concrete measures adopted in this respect.