Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

Migration for Employment Convention (Revised), 1949 (No. 97) - Germany (Ratification: 1959)

The Committee takes note of the observations of the Confederation of German Employers’ Associations (BDA) received on 1 September 2017.

Article 1 of the Convention. Information on laws and regulations. The Committee notes that in its observations, BDA indicated that the country needed skilled migrant workers and that the complexity of the applicable legislation was an obstacle to their immigration into the country. The Committee takes note of the indication, in the report of the Government, that the high demand in certain sectors for skilled workers has prompted the adoption of the Skilled Immigration Act, on 15 August 2019. The Committee also notes the Government’s indication that, following the entry into force of this Act, the “priority review”, by which the Federal Employment Agency verifies whether an open position can be fulfilled by a German worker before authorizing the hiring of a foreign skilled worker, will no longer apply. In addition, the Government indicates that the new Act provides for the possibility for foreign skilled workers with vocational trainings to enter the country on a temporary basis to seek employment or to stay in the country to obtain supplementary qualifications. Lastly, the Government indicates that an administrative fast-track process would be created for skilled migrant workers. The Committee further notes that the Government refers to a series of other reforms on migration-related issues adopted in 2019 (including the Law on the removal of the time limit from the Integration Act, of 4 July 2019; the Law on tolerated stay in case of training or employment of 8 July 2019; and the Law on the promotion of the training and employment of foreign nationals of 8 July 2019). The Committee requests the Government to provide detailed information on the impact of the recent reforms on migration-related issues for the application of the Convention.

Directive (EU) 2018/957 amending Directive 96/71/EC concerning the posting of workers in the framework of the provision of services. The Committee welcomes the adoption of Directive (EU) 2018/957, pursuant to which Member States of the European Union shall apply to posted workers the terms and conditions of employment of the host country in a series of matters, that include remuneration, maximum work periods and minimum rest periods, minimum paid annual leave, minimum age, health, safety and hygiene at work, and accommodation. The Committee notes that Member States of the European Union shall adopt by 30 July 2020, the laws, regulations and administrative provisions necessary to comply with this Directive.

Information on national policies. In its previous comment, the Committee requested the Government to provide information on the implementation of the National Plan of Action on Integration (NPAI), as well as on the activities of the Federal Office for Migration and Refugees (FOMR). On the implementation of the NPAI, the Committee notes that, the Government refers to the programme “integration through qualifications”, and to the establishment of the Office for Equal Treatment of EU Workers to assist EU workers and their families, as required pursuant to EU Directive 2014/54/EU. However, the Committee notes that the Government does not provide details on the implementation in practice nor on the concrete results of the NPAI, in particular with regard to migrant workers non EU Member States. With regard to the activities of the FOMR, the Committee takes note of the Government’s indication that it is responsible for carrying out research projects on the economic aspects of migration and provides a list of its recent surveys. The Committee requests the Government to provide further details on the implementation of the NPAI in practice, in particular with regard to migrant workers from non EU Member States, and on any other national policy relating to migration.

Articles 2 and 4. Free services provided to migrant workers. Integration courses. In follow-up to its previous request to provide this information, the Committee takes note of the Government’s indication regarding the number of third country nationals required to take part in integration courses (184,415 persons in 2016).

Articles 2, 4 and 6. Application of the Convention to women migrant workers. In follow-up to its previous comment, the Committee notes that the Government does not provide information on its assessment of the application of the Convention to women migrant workers. The Committee takes note of the indication by the BDA that employers support the activities undertaken by the Federal Employment Agency for the better integration of refugee women. The Committee observes that the United Nations Committee on the Elimination of Discrimination against Women, while noting the efforts of the Government to facilitate the integration of migrant women, also noted that they suffered from stereotyped media portrayals, had limited access to the formal labour market, and were at risk of experiencing intersecting forms of discrimination in access to employment (CEDAW/C/DEU/CO/7-8, 9 March 2017, paragraphs 21, 35, and 43). The Committee requests the Government to provide information on the assistance services delivered to migrant women workers to address their specific needs.

Article 6(1)(d). Treatment no less favourable in respect to access to legal proceedings relating to the matters referred to in the Convention. In its previous comments, the Committee requested the Government to provide information on the mechanisms and procedures available to migrant workers to seek redress regarding situations of non-respect of the right to equal treatment. The Committee notes that the Government indicates that migrant workers have access to legal remedies and may file complaints and seek compensation in cases of discrimination pursuant to sections 13 and 15 of the General Act on Equal Treatment. The Committee further notes that pursuant to section 75(1) of the Works Constitution Act, the employer and the works council shall ensure that all persons working in the establishment are treated in accordance with the principles of law and equity, and that no one is subject to discrimination on the ground of nationality.

Access to legal proceedings in practice. In its previous comments, the Committee had observed that pursuant to section 39(2) of the Residence Act, the Federal Employment Agency may approve the granting of a temporary residence permit if, among other requirements, it has established that the foreign worker is not employed on terms less favourable than the ones that apply to comparable German workers. It had also observed that pursuant to section 41 of the Residence Act, the approval may be revoked and the seasonal work permit withdrawn if, among other grounds, the foreigner is employed on less favourable terms than comparable German workers. The Committee takes note of the Government’s indication that given the serious consequences attached to these decisions, the Federal Employment Agency only revokes residence permits in rare instances, when it acquires knowledge of the less favourable treatment. The Committee requests the Government to ensure that the application of section 41 of the Residence Act does not, in practice, deter migrant workers from seeking legal remedies relating to the matters covered by the Convention.