Observation (CEACR) - adopted 2014, published 104th ILC session (2015)

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

The Committee takes note of the observations provided by the International Trade Union Confederation (ITUC) in a communication received on 1 September 2014. The Committee requests the Government to provide its comments in this regard.

The Committee takes note of the observations provided by the International Organisation of Employers (IOE) and the Confederation of German Employers’ Associations (BDA) in a communication received on 1 September 2014, according to which the Convention is fully implemented in law and in practice.

The Committee notes that the Government’s report has not been received. It must therefore repeat its previous comments.

Article 4 of the Convention. Right to collective bargaining with respect to conditions of employment of public servants not engaged in the administration of the State, including teachers. The Committee noted that, in response to its previous comments, the Government stated that excluding civil servants (Beamte) from collective bargaining is in accordance with the Convention, since the position of public servants is explicitly excluded under Article 6 of the Convention. The Committee further noted that, according to the Government’s report, employees in the public service (Arbeitnehmer des öffentlichen Dienstes), e.g. teachers employed under collective agreements in the education services of the Länder, do enjoy the right to bargain collectively, whereas civil servants (Beamte) do not have the right to bargain collectively because the legislative regulation of the civil service is a constitutionally endowed traditional principle of the civil service under article 33(5) of the Basic Law and because civil servants (Beamte) have the duty to exercise their functions lawfully, impartially and altruistically. The Government stressed that, even for particular groups of civil servants (Beamte), collective bargaining which is aimed at concluding collective agreements is incompatible with the principle of the legislative regulation of the civil service, and that this remains valid regardless of the outcome of wage negotiations by employees in the public service (Arbeitnehmer des öffentlichen Dienstes). The Committee also noted the Government’s indication that to compensate for the inability to enter into collective negotiations, the umbrella organizations of the civil servants’ unions take part in the initial preparation of the general regulations pertaining to civil servant law, pursuant to section 118 of the Federal Law on Civil Servants (Bundesbeamtengesetz (BBG)) and section 53 of the Law on the Status of Civil Servants (Beamtenstatusgesetz). The Government had considered that the current system of trade union involvement sufficiently protects the interests of civil servants (Beamte) so that no changes in this respect are necessary.

The Committee understands that the position of the Government concerning the right to collective bargaining of civil servants (Beamte) is conditioned by the wording of the constitutional provisions. The Committee reiterates 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. The Committee also observed that the Government indicates that, contrary to teachers with the status of civil servant (Beamte), teachers with the status of employee in the public sector (Arbeitnehmer des öffentlichen Dienstes) enjoy the right to collective bargaining (which the Committee understands is also available to private sector teachers). In this regard, the Committee wishes to underline that, pursuant to Article 6, the Convention “does not deal with the position of public servants engaged in the administration of the State”, and therefore covers all public service workers other than those engaged in the administration of the State. The Committee thus considers that a distinction must be drawn between, on the one hand, public servants who by their functions are directly engaged in the administration of the State (that is, civil servants employed in government ministries and other comparable bodies) as well as officials acting as supporting elements in these activities and, on the other hand, persons employed by the government, by public undertakings or by autonomous public institutions; only the former category can be excluded from the scope of the Convention.

Recalling that, according to Article 6 of the Convention, public service workers who are not engaged in the administration of the State, including teachers, should enjoy the right to collective bargaining, the Committee once again requests the Government to indicate in its next report the measures taken or envisaged to explore, together with the trade union organizations concerned, ways in which the current system could be developed so as to give full effect to the principles enounced above.

The Committee hopes that the Government will make every effort to take the necessary action in the near future.