Minimum Wage-Fixing Machinery Convention, 1928 (No. 26) - Germany (Ratification: 1929)

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

In order to provide a comprehensive view of the issues relating to the application of ratified Conventions concerning minimum wages, the Committee considers it appropriate to examine Conventions Nos 26 and 99 together.

The Committee notes the observations of the German Confederation of Trade Unions (DGB) received in 2016 on the application of Convention No. 26.

Minimum wage-fixing machinery. The Committee takes note with interest of the adoption on 11 August 2014 of the Minimum Wage Act (the Act) that establishes a national minimum wage of general application and a machinery for its periodic adjustment. This machinery includes a standing Minimum Wage Commission.

Articles 1 and 2 of Convention No. 26 and Article 1 of Convention No. 99. Categories of workers excluded from the Act. The Committee notes that, in its observations, the DGB considers that the fact that the minimum wage established under the Act does not cover workers under the age of 18 years old who have not completed a vocational training and workers who were previously in a situation of long-term unemployment raises issues of conformity with the Convention. The Committee takes note of the Government’s indication in its report that these exceptions aim at securing the integration of the workers concerned into the labour market and at promoting the completion of vocational training education. Moreover, the Committee notes that in the case of workers who were previously in a situation of long-term unemployment the exclusion from the protection of the minimum wage only concerns the first six months of their employment, in accordance with section 22(4) of the Act.

Article 4 of Conventions Nos 26 and 99. Adequate system of supervision and inspection. The Committee notes that in its observations the DGB indicates that despite the recent introduction of the statutory minimum wage, the staff of the Tax Enforcement Unit for Undeclared Work (FKS) of the Customs Authority, which is responsible for controlling compliance with the Act, was barely raised. The DGB also indicates that the number of inspections concerning minimum wages is insufficient, especially in economic sectors at risk and in smaller companies. The Committee notes the Government’s information that FKS inspections are risk-based, and are also carried out on the basis of anonymous complaints, and that every inspection has included a minimum wage review under the Act. The Committee requests the Government to provide further information on the manner in which it ensures the enforcement of the Act, including the number of inspection staff, the number of inspections undertaken for this purpose and the sectors concerned.

Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

Articles 1 and 3 of the Convention. Minimum wage-fixing machinery. The Committee notes the latest development in minimum wage policy, in particular the setting of a minimum wage for temporary agency workers as from 1 January 2012, and the adoption of the 2009 amendment to the Minimum Working Conditions Law (Mindestarbeitsbedingungsgesetz) of 1951, which provides for the establishment of an independent tripartite committee that may fix minimum wage rates with respect to those branches of economy in which employers bound by applicable collective agreements employ less than 50 per cent of the total workforce in the branch in question. Once approved by the Ministry of Labour and Social Affairs, these minimum wage rates become binding through a federal legislative ordinance. Moreover, new sections 16 and 18 of the Minimum Working Conditions Law provide for sanctions in case of non-payment of the applicable minimum wages, including the possible exclusion from public tendering and the imposition of administrative fines. While noting the Government’s indication that no minimum wage rates have yet been adopted under the amended Minimum Working Conditions Law, the Committee requests the Government to keep the Office informed of any progress made in this respect.

In addition, the Committee understands that there is an ongoing debate on the possible introduction of a national minimum wage and that a proposal for the establishment of a bipartite committee composed of an equal number of employers’ and workers’ representatives, which could adopt minimum wage rates for those economic sectors in which no collective bargaining agreements are concluded, was discussed in parliament in January 2012. The Committee requests the Government to keep the Office informed of any further developments in this regard.

Finally, the Committee notes the comments made by the German Confederation of Trade Unions (DGB), according to which the only way to effectively protect workers from poverty wages would be the introduction of a general statutory minimum wage of not less than €8.50 per hour which would guarantee a cross-sectoral wage threshold. The DGB indicates that, to date, minimum wage rates have only been adopted under the Posting of Workers Act, which nonetheless provides for minimum wage fixing only in eight specific branches, including construction, cleaning, mail services, mining and security services. The Committee requests the Government to submit any comments it may wish to make in reply to the observations of the DGB.

Direct Request (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee notes the information provided in the Government’s report in reply to its previous comments, in particular the explanations concerning (i) the tripartite composition of home work committees under the relevant provisions of the Home Work Act 1951, as amended, and (ii) the procedure for extending the scope of application of minimum wage ordinances to employers and workers not initially covered by collectively agreed minimum wages.

In addition, the Committee notes the Government’s indication that statutory minimum wages have now been fixed for three more sectors apart from the main construction industry, i.e. the painting industry, the roofing industry and the demolition/wrecking industry. According to the Government’s report, these minimum wage ordinances cover only that minority of the total workforce which is at high risk of wage dumping although the possibility of introducing similar ordinances in other branches is currently debated and might eventually give rise to further legislative action. The Committee requests the Government to keep it informed of any new developments in this regard.

Further, the Committee notes the Government’s report of July 2005 on the effects of the law for the fight against illegal employment, which addresses among other problems the payment of sub-minimum wages and the means for administrative and legal action against such phenomena. It also notes the statistical data concerning the minimum hourly rates applicable in the main home working trades. The Committee would be grateful if the Government would continue to supply, in accordance with Article 5 and Part V of the report form, general information on the practical application of the Convention, including for instance, the coverage rate of collective agreements establishing minimum wages, statistics on the number of home workers (including “external assistants”) protected by binding wage agreements and the number of home work committees currently in operation, activity reports of the customs authorities showing the number of inspection visits carried out, and the number of infringements of the minimum wage legislation observed, etc.

Direct Request (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee notes the information concerning the application of the Convention provided by the Government in its report. It requests the Government to provide further information on the points raised below.

I.  Association of the employers and workers concerned in the
  operation of minimum wage fixing machinery under the
  terms of the Homework Act of 14 March 1951, as amended

The Committee notes that the report provided by the Government does not contain additional information on the manner in which the employers and workers concerned participate in practice in the operation of the minimum wage fixing machinery established by the 1951 Homework Act, as amended. It notes that the Government refers in this respect to its previous reports in which it states that the employers and workers covered by the scope of the Homework Act participate in so far as possible in wage-fixing procedures. In this respect, the Committee requests the Government to provide further information on the practical arrangements to ensure the participation of the employers and workers concerned in equal numbers and on equal terms in minimum wage fixing machinery, as required by Article 3, paragraph 2(2), of the Convention.

II.  Application of the 1951 Homework Act to "external
  assistants" working at home

The Committee notes from the report provided by the Government that the minimum wage rates applicable to employees in enterprises in the apparel sector have been extended to "external assistants" working at home in this sector. While noting the Government’s statement that the determination of minimum wage conditions for this category of workers only appeared necessary in the apparel sector, in which these workers are the most numerous, the Committee notes that the Government has been indicating, since 1984, the lack of statistics on the number of these workers. It therefore requests the Government to indicate the legal framework applicable to these workers in relation to minimum wages in homeworking industries other than the apparel sector. Furthermore, the Committee hopes that the Government will be in a position to take all the necessary measures to compile and send with its next report detailed information, including statistics, on "external assistants" working at home, including their numbers and the wage conditions applicable to them.

III.  Introductionof a minimum wage in the construction sector

The Committee understands that, since 1996, the employees of foreign enterprises carrying out construction work in Germany must be paid at the same level as the employees of German employers by virtue of a collective agreement which has been extended by decree. It requests the Government to provide a copy of the text extending the agreement and would be grateful if the Government would keep it informed of the procedures by which employers’ and workers’ associations in this sector were consulted for the purposes of the extension of the minimum wage established by agreement in accordance with Article 2 of the Convention. The Committee would also be grateful if the Government would indicate the arrangements under which the employers and workers concerned, in this case foreign employers and workers carrying out construction in Germany, have the opportunity to be involved in the operation of the minimum wage fixing machinery established in this sector in accordance with Article 3, paragraph 2(2), of the Convention.

IV.  Article 5 of the Convention and Part V of the report form

The Committee notes the statistics provided by the Government on changes in the hourly rates of minimum wages for homeworkers for the period 2001-02. In view of the fact that the Government’s reports exclusively cover the minimum wage fixing machinery in the homeworking sector, the Committee would be grateful if the Government would provide detailed information with its next report on all economic sectors and on the provisions of collective agreements establishing minimum wages, as well as the minimum wage rates fixed by such agreements. Indeed, the Committee is of the opinion that even though, under the terms of Article 1, paragraph 1, of the Convention, a State which ratifies this instrument is not bound to create or maintain machinery whereby minimum rates of wages can be fixed, if there exist arrangements for the effective regulation of wages by collective agreement, a system for the fixing of minimum wages, whether by legislation or agreement, can be considered effective within the meaning of the Convention only in so far as it excludes the possibility of exceptionally low wages and establishes real minimum levels below which workers’ earnings cannot fall. It is therefore bound to request information on the number of workers who are not covered by minimum wage rates established by collective agreement, the coverage rate of collective agreements establishing minimum wages and the sectors not covered by collective agreements fixing minimum wages. The Committee would also be grateful to be provided with any other information on the application of the Convention in practice, and particularly extracts from the reports of bodies responsible for supervising compliance with minimum wages.

Direct Request (CEACR) - adopted 1998, published 87th ILC session (1999)

The Committee notes the information provided in the Government's report in reply to its previous comments. It notes the Government's indication that, since the application of the Law on Home Work (HAG) in the new federal Länder, the principals and homeworkers concerned are also involved, as far as possible in the wage-fixing mechanism.

The Committee requests the Government to continue to supply, in accordance with Article 5 of the Convention and point V of the report form, general information on the application of the Convention in practice.

Direct Request (CEACR) - adopted 1993, published 80th ILC session (1993)

The Committee notes the information supplied with the Government's report, including the details of the minimum wage rates fixed. It notes that the scope of the Homework Act of 1951 and its implementing Order has been extended to the new federal Länder since 1 July 1991. The Committee would be grateful if the Government would indicate whether the employers and workers concerned in the new federal Länder are also associated in the operation of the minimum wage fixing machinery established under the above legislation in conformity with Article 3, paragraph 2(2), of the Convention.