Direct Request (CEACR) - adopted 2009, published 99th ILC session (2010)

Holidays with Pay Convention (Revised), 1970 (No. 132) - Germany (Ratification: 1975)

Article 11 of the Convention. Compensation relating to holiday due but not taken upon termination of employment. The Committee recalls that for many years it has been commenting on the application in practice of section 7(4) of the Federal Holidays (BUrlG) Act of 8 January 1963, requesting the Government essentially to confirm that, in all cases, including in the case of sick leave, all workers are entitled, upon termination of employment, to a proportionate holiday with pay or to compensation, as prescribed by this Article of the Convention.

In reply to the Committee’s repeated comments, the Government has for a long time indicated its intention firstly to codify the employment contract legislation, including examining the provisions relating to holiday, and, secondly, to reform the labour legislation as part of its economic stimulation programme covering the period up to 2010, one of the main objectives of which is to create a modern and flexible labour law framework as well as the general conditions for job creation and security. While considering the reform of its labour law, the Government also indicated that it wished to study whether and how the legislation in force governing paid holiday could be reformed, including giving consideration to the application of Article 11 of the Convention. In its latest report, the Government refers to a case currently before the Court of Justice of the European Communities which concerns, inter alia, the legal matters covered by Article 11 of the Convention (request for a preliminary ruling from the Labour Court of Dusseldorf, RS C-350/06) and indicates that, as soon as the Court of Justice has published its decision, the Government will consider whether it is necessary to introduce a reform relating to holidays.

The Committee notes the ruling handed down by the Court of Justice in January 2009, which establishes clearly that workers may not be deprived of their annual holiday with pay or the compensation relating to that holiday on account of the fact that they were not in a position to work when the employment was terminated. The Committee also notes with interest that both the Court’s ruling and the Advocate-General’s conclusions refer expressly to the provisions of Convention No. 132 and emphasize the importance of taking into account the essential principles of the Convention when interpreting the provisions of Directive 2003/88/EC of 4 November 2003 concerning certain aspects of the organization of working time. The Committee therefore requests the Government to provide further information on any developments concerning the application of Article 11 of the Convention, in both law and practice, in the light of the Committee’s previous comments and the ruling handed down by the Court.

Part V of the report form. Application in practice. The Committee notes the detailed information contained in the Government’s report concerning the duration of the holiday of various categories of workers covered by collective agreements. The Committee requests the Government to continue providing general information on the manner in which the Convention is applied in practice and, in particular, extracts from the reports of the inspection services indicating the number of violations reported relating to annual holiday with pay and the penalties imposed, statistics indicating the number of workers covered by the legislation, copies of collective agreements containing provisions relating to annual holiday with pay, etc.