Observation (CEACR) - adopted 2017, published 107th ILC session (2018)

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

The Committee notes the observations received on 1 September 2017 from the Confederation of German Employers’ Associations (BDA), endorsed by the International Organisation of Employers (IOE), which mainly relate to matters under examination by the Committee in relation to the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). The Committee also notes the Government’s reply to the 2014 observations of the International Trade Union Confederation (ITUC).

Articles 4 and 6 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, enjoy the right to collective bargaining. The Committee had previously noted with interest a ruling handed down by the Federal Administrative Court in 2014 holding that, while the prohibition of collective bargaining deriving from article 33(5) of the Basic Law is linked to the civil servant status and applies to all civil servants irrespective of their duties, Article 11(2) of the European Convention on Human Rights (ECHR) provides that restrictions to freedom of association could only be justified by the relevant function of the civil servant; and that, in the case of civil servants not exercising sovereign authority of the State, for instance teachers in public schools, there is a collision, which needs to be solved by the federal legislator. The Government added that, according to the Federal Administrative Court, in view of the collision between article 33(5) of the Basic Law and article 11 of the ECHR, the federal legislator needed to considerably broaden, in public service domains that were not characterized by the exercise of genuinely sovereign authority, the participation rights of trade unions of civil servants towards a negotiation model. The Committee requested 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 to effectively recognize the right to collective bargaining of public servants who are not engaged in the administration of the State.

The Committee notes that the Government indicates in relation to the employment of teachers or their appointment to a civil servant position that the way in which the State wishes to perform its duties is generally left to its discretion, with the exception of the restriction enshrined in the principle of reserved functions under article 33(4) of the Basic Law, which requires that certain areas be staffed by civil servants; however, this does not remove the State’s organizational sovereignty and does not prohibit the State from conferring civil servant status. In this regard the Government supplies several judgments issued in the past by the Federal Constitutional Court. The Committee also notes that the Government refers to its explanations in its report concerning Convention No. 87, according to which: (i) under the German Constitution, the professional civil service must be regulated taking into account the traditional principles of the professional civil service; (ii) one of those principles is the prohibition on civil servants from participating in industrial action, as it is incompatible with the relationship of service and loyalty and with the structural decision that relationships governed by civil service law are regulated by the legislature; (iii) this prohibition is compensated for by various rights and principles, such as the principle of a salary commensurate with the civil service position and participation rights of the leading organizations of trade unions and employers’ associations in the legislative process; and (iv) as to the judgment of the Federal Administrative Court, the case law of the European Court of Human Rights is, in the Government’s view, not capable of altering these constitutional circumstances, since, despite a functional approach to exception clauses relating to sovereignty, the case law on article 11 of the ECHR does not exclude the classification of teachers as “members of the administration of the State” within the meaning of article 11(2), and the restriction of collective rights is justified by the legitimate aim of guaranteeing the right to education. The Government adds that the relevant decisions of the Federal Administrative Court are currently the subject of proceedings before the Federal Constitutional Court. In this context, the Committee notes from the observations of the BDA, which are mainly reflected under Convention No. 87, the BDA’s view that, in light of the Federal Administrative Court judgment, the legislator has different options to implement a legislation in compliance with article 11 of the ECHR, for example by differentiating between areas of genuinely sovereign domains and areas where the unilateral regulatory power of the employer could be restricted to extend the participation of representative organizations in the public service; and that this issue will be further discussed at national level by the Government and the social partners, since this implies a revision of the Basic Law, the German Constitution.

The Committee requests the Government to provide a copy of the decision of the Federal Constitutional Court on the constitutional complaint raised following the Federal Administrative Court judgment of 27 February 2014, as soon as it is handed down, as well as any other pending decision to be issued by the Federal Constitutional Court on the subject. The Committee recalls that it has been highlighting for many years that, pursuant to Articles 4 and 6 of the Convention, all public service workers, other than those engaged in the administration of the State, should enjoy collective bargaining rights. Taking due note of the Federal Administrative Court judgment of 27 February 2014 and the pending decision of the Federal Constitutional Court on the related constitutional complaint, the Committee requests once again the Government to engage in a comprehensive national dialogue with representative organizations in the public service with a view to exploring innovative solutions and 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, including for instance, as indicated by the BDA, by differentiating between areas of genuinely sovereign domains and areas where the unilateral regulatory power of the employer could be restricted to extend the participation of representative organizations in the public service.