Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

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

The Committee notes the comments of the International Trade Union Confederation (ITUC) dated 4 August 2011 on the application of the Convention as well as the Government’s observations thereon.

Article 3 of the Convention. Right of workers’ organizations to organize their administration and activities. 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.

The Committee notes from the ITUC observations that the Düsseldorf Administrative Court handed down a ruling dated 15 December 2010 setting aside the disciplinary punishment of a teacher with civil servant status (Beamte) who had participated in a strike. In this regard, the Committee notes with interest that, in its ruling, the Düsseldorf Administration Court held that, since the general strike prohibition for civil servants in Germany is probably contrary to international law (in particular to the European Convention on Human Rights), the imposition of disciplinary measures for participation in a strike is unacceptable when the relevant civil servant – such as, in the present case, the teacher – does not pertain to the administration of the State (“principle of friendly interpretation towards international law”). The Committee also notes that the Government states in its report that this decision only relates to an individual case and does not advocate a right to strike for civil servants in general. The Government also stresses that it stands by the strike ban for all civil servants (Beamte), which constitutes a traditional principle of the civil servants under article 33(5) of the Basic Law and derives from the civil servants’ duty of allegiance and obligation to fulfil their duties as a permanent function (i.e. without interruption) enshrined in article 33(4). According to the Government’s report, the right to strike in the public service depends on the status group – employees in the public service (Arbeitnehmer des öffentlichen Dienstes) do enjoy the full right to strike whereas civil servants do not have the right to strike on constitutional grounds. The Committee further notes the Government’s indication that, since the Basic Law does not specify which tasks are to be entrusted to civil servants (Beamte), the Government has a certain constitutional leeway in the delegation of the tasks and prefers to use civil servants where the State interferes in the rights of individuals for the public good.

The Committee once again 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. The Committee is of the view that teachers, postal workers and railway employees with the status of civil servant (Beamte) do not exercise authority in the name of the State and should therefore be allowed, without prejudice to the possibility of establishing a minimum service, to exercise the right to strike, which the Committee understands is available to private sector teachers, postal workers and railway employees as well as to teachers with the status of employee in the public sector (Arbeitnehmer des öffentlichen Dienstes). The Committee requests the Government to indicate in its next report any concrete measures taken or envisaged, in the light of the abovementioned ruling of the Düsseldorf Administrative Court, to ensure that all 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.