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

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Germany (Ratification: 1956)

The Committee takes note of the comments by the International Trade Union Confederation (ITUC) dated 26 August 2009 on the application of the Convention.

Several of the Committee’s previous comments concerned the procedures through which the conditions of employment of civil servants, including teachers, are determined. The Committee notes that the ITUC refers to the lack of further progress on the modernization of the civil service legislation under the present Government.  The Committee notes that the Government, in its report, indicates that it is the responsibility of the Länder and not of the federal Government to employ teachers and to decide whether they should be hired as civil servants or under a collective agreement and that to compensate for civil servants’ lack of strike rights and inability to enter into wage negotiations, the umbrella organizations of the civil servants’ unions take part in the initial preparation of the general regulations pertaining to civil servant law, at the federal level under section 118 of the federal law on civil servants (BBG), and in the Länder under section 53 of the law on the status of civil servants. The Committee also notes that the Government indicates that in the case of the recent reform laws (the law reforming the public service law (Dienstrechtsneuordnungsgesetz) and the law on the status of civil servants (Beamtenstatusgesetz)) the consultative procedure was respected and umbrella organizations were involved in the legislative process at an early stage. 

The Committee once again recalls that it is contrary to the Convention to exclude from the right to collective bargaining those categories of public employees who are not engaged in the administration of the State. In this respect, the Committee considers that teachers carry out different duties from officials engaged in the administration of the State, and therefore of the “BUND” and should enjoy the guarantees provided for under Article 4 of the Convention. The Committee recalls that negotiations need not necessarily lead to legally binding instruments so long as account is taken in good faith of the results of the negotiations in question.

In the light of the above comments, the Committee once again requests the Government to indicate in its next report the measures taken or contemplated to study, together with the trade union organizations concerned, ways in which the current system could be developed so as to ensure a proper application of the Convention.