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

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

The Committee notes the 2012 observations of the International Organisation of Employers (IOE), as well as the observations received on 1 September 2014 from the IOE and the Confederation of German Employers’ Associations (BDA) according to which the Convention is fully implemented in practice. The Committee also notes the observations received on 1 September 2014 from the International Trade Union Confederation (ITUC) concerning the practical application of the Convention and requests the Government to provide its comments thereon.

The Committee notes the detailed observations of 2012 from the German Confederation of Trade Unions (DGB) concerning the strike ban for civil servants (Beamte) denouncing in particular that the Government still insists on the congruency between the status of civil servant (Beamter) and the exercise of public authority, although: (i) the granting of the status of civil servant (Beamter) is not based on duties and responsibilities but rather on budgetary considerations (for example, the pension of civil servants only has to be financed at the end of their career instead of being funded continuously by the employer during the period of service); (ii) the purely pedagogic activity of teachers only includes public authority elements in higher functions and is also exercised by public service employees (Arbeitnehmer des öffentlichen Dienstes) and by private sector employees in the case of private schools; and (iii) civil servants (Beamte) working in state enterprises perform the same tasks after privatization. The Committee also notes the DGB’s emphasis that the dimension of the issue is still considerable, because it affects 1.65 million civil servants (Beamte) of which 600,000 are working as teachers in public schools and 130,000 are working in privatized state enterprises in the railway and postal sectors. Furthermore, the Committee notes that the DGB also criticizes the use in non-essential services of temporary workers as strike breakers, providing concrete examples of such use in practice and denouncing the lack of a general prohibition. The Committee requests the Government to provide its comments on the above observations of the DGB.

Article 3 of the Convention. Right of workers’ organizations to organize their administration and activities and to formulate their programmes. The Committee recalls that it has been requesting for a number of years the adoption of measures to recognize the right of public servants who are not exercising authority in the name of the State, to have recourse to strike action. In its previous observation, the Committee noted with interest a ruling handed down by the Düsseldorf Administrative Court in 2010 holding that, since the general strike prohibition for civil servants in Germany is contrary to international law, the imposition of disciplinary measures for participation in a strike is unacceptable when the relevant civil servant (Beamter) – 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 requested the Government to indicate any concrete measures taken or envisaged, in the light of the above ruling, 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.

The Committee notes that the Government refers to a ruling of 27 February 2014 handed down by the Federal Administrative Court in the appeal proceedings against the above decision of the Düsseldorf Administrative Court. The Committee notes with interest that the court holds that: (i) while the constitutional strike ban depends on the status group and is valid for all civil servants (Beamte) irrespective of their duties and responsibilities, there is a collision with the European Convention on Human Rights in the case of civil servants (Beamte) who are not active in genuinely sovereign domains, for instance teachers in public schools, and this collision should be solved by the federal legislator; and (ii) in the case of civil servants (Beamte) who exercise sovereign authority – for example, army, police or law enforcement in general, judiciary, diplomacy, and public administration units at federal/state/local level elaborating, implementing and enforcing legal acts – there is no collision with the European Convention on Human Rights and thus there is no need for action. The Government adds that: (i) for civil servants (Beamte) who do not exercise sovereign authority (hoheitliche Befugnisse), the legislator must therefore bring about a balancing of the mutually exclusive legal positions under article 33(5) of the Basic Law and the European Convention on Human Rights; (ii) in the meantime, the constitutional strike ban for civil servants (Beamte) remains in force; and (iii) the ruling raises numerous constitutional questions, and, given that union representatives announced they would refer the matter to the Federal Constitutional Court and that two proceedings on the same subject matter are already pending before it, legislative measures should not forestall the clarification and resolution of the issues by that Court.

Recalling that it has been highlighting for many years that a strike restriction or even prohibition may be applied only in the case of public servants exercising authority in the name of the State, the Committee reiterates its view that the duties and responsibilities of teachers, postal workers and railway employees, irrespective of their status, do not amount to exercising authority in the name of the State, and that they should therefore be allowed to exercise the right to strike, without prejudice to the possibility of establishing a minimum service. In light of the abovementioned decision of the Federal Administrative Court and given the still large numbers of civil servants (Beamte) not exercising authority in the name of the State affected by the strike ban, the Committee requests the Government: (i) to refrain in the future from imposing disciplinary sanctions against any civil servants not exercising authority in the name of the State who participate in peaceful strikes; and (ii) to engage in a comprehensive national dialogue with representative organizations in the public service with a view to exploring possible ways of bringing the legislation into conformity with the Convention. The Committee also requests the Government to provide information on any ruling handed down by the Federal Constitutional Court on the subject.