Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

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

The Committee notes that the Government does not respond, in its report, to the 2014 observations from the International Trade Union Confederation (ITUC) alleging acts of interference and anti-union discrimination. The Committee requests the Government once again to provide its comments thereon.

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. The Committee recalls that it has been requesting, for a number of years, the adoption of measures to ensure that public servants who are not engaged in the administration of the State, including teachers, enjoy the right to collective bargaining. The Committee notes that the Government reiterates that employees in the public service (Arbeitnehmer des öffentlichen Dienstes), for example, 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 civil service is subject to legislative regulation.

Furthermore, the Committee notes that the Government refers to a ruling handed down by the Federal Administrative Court on 27 February 2014 in the appeal proceedings against a 2010 decision of the Düsseldorf Administrative Court. The Committee notes with interest that the Federal Administrative Court holds that: (i) while the general prohibition of collective bargaining and collective action deriving from article 33(5) of the Basic Law is linked to the civil servant status (Beamtenstatus) as such and thus applies to all civil servants (Beamte) irrespective of their duties and responsibilities, Article 11(2) of the European Convention on Human Rights provides that restrictions to freedom of association could only be justified by the relevant function of the civil servant, that is, would only be permissible in the case of civil servants (Beamte) who exercise sovereign authority (hoheitliche Befugnisse) – for example, army, police or law enforcement in general, judiciary, diplomacy, and public administration units at the federal, state or local levels elaborating, implementing and enforcing legal acts; (ii) in the case of civil servants (Beamte) who do not exercise sovereign authority, for instance teachers in public schools, there is therefore a collision with the European Convention on Human Rights; and (iii) this collision needs to be solved by the federal legislator who must bring about a balancing of the mutually exclusive legal positions under article 33(5) of the Basic Law and Article 11 of the European Convention on Human Rights.

The Committee notes the Government’s indications that: (i) the Federal Administrative Court states that it would be incompatible with the legal nature of the civil service (Beamtenverhältnis) as a relationship characterized by sovereignty and loyalty that the concretization of the regulatory framework of civil service law (Beamtenrecht) is subject to collective bargaining, that is negotiated and agreed upon between the public employer and the trade unions of civil servants (Beamte); and that the civil service (Beamtentum) as an institution would be fundamentally altered should the issues of pay, working hours or age limits for recruitment and retirement be regulated by collective agreements; (ii) the Federal Administrative Court is however of the view that the federal legislator is called upon, in public service domains that are not characterized by the exercise of genuinely sovereign authority (hoheitliche Befugnisse), to broaden considerably the participation rights of trade unions of civil servants (Beamte) towards a negotiation model, since the participation rights currently granted under section 118 of the Federal Law on Civil Servants (Bundesbeamtengesetz (BBG)) and section 53 of the Law on the Status of Civil Servants (Beamtenstatusgesetz) do not suffice; and (iii) the matter has been referred to the Federal Constitutional Court, and therefore legislative measures should not forestall the specifications of the Federal Constitutional Court with respect to possible solutions.

Recalling that it has been highlighting for many years that, pursuant to Article 6 of the Convention, all public service workers, other than those engaged in the administration of the State, should enjoy collective bargaining rights, the Committee reiterates its view that, given their functions, teachers, as well as postal workers and railway employees, irrespective of their status, cannot be considered as employees engaged in the administration of the State, and that they should therefore enjoy the right to bargain collectively. Taking due note of the abovementioned decision of the Federal Administrative Court and given the still large numbers of civil servants (Beamte) not engaged in the administration of the State who are being denied collective bargaining rights, the Committee requests the Government to engage in a comprehensive national dialogue with representative organizations in the public service with a view to exploring possible ways in which the current system could be developed so as to effectively recognize the right to collective bargaining of public servants who are not engaged in the administration of the State. The Committee also requests the Government to provide information on any ruling handed down by the Federal Constitutional Court on the subject.