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

Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

The Committee notes the observations of the Confederation of German Employers’ Associations (BDA) and the German Confederation of Trade Unions (DGB), received on 31 August 2021, which mainly relate to matters examined by the Committee under the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).

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 2014 ruling handed down by the Federal Administrative Court 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. 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.

In its previous comment, having noted that a complaint had been raised before the Federal Constitutional Court in relation to the 2014 Federal Administrative Court judgment, the Committee requested the Government to provide a copy of the decision of the Federal Constitutional Court, as well as any other pending decision issued by it on the subject. It also requested the Government once again 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.

The Committee notes the Government’s indication that in its decision of 12 June 2018 (Case No. 2 BvR 1738/12) the Federal Constitutional Court held that: (i) the universal freedom of association derived from article 9(3) of the Basic Law does not contain exclusions for specific professions and therefore applies unconditionally not only to public sector workers but also to civil servants; (ii) this does not mean, however, that any restrictions to freedom of association are automatically excluded, as even fundamental rights may be restricted as a result of conflicting third-party rights and other rights with constitutional status; (iii) the traditional principle of the career civil service system guaranteed by article 33(5) of the Basic Law amounts to one such restriction with constitutional status; (iv) the ban on the involvement of civil servants in collective bargaining is closely linked to the duty of loyalty, the principle of lifetime employment and the civil service principle of alimentation (Alimentationsprinzip), which requires employers to provide civil servants and their families with reasonable lifetime remuneration and a standard of living corresponding to their seniority, the level of responsibility associated with their office and the relevance of the career civil service to the general public, in line with economic and financial growth in general; (v) the entirely objective guarantee of a reasonable standard of living under article 33(5) of the Basic Law establishes an individual right each civil servant holds vis-à-vis the State, equivalent to a fundamental right, to have the constitutionality of their alimentation reviewed in court; and (vi) the ban on civil servants taking part in collective bargaining thus follows from the traditional principle of the career civil service system but the individual right nevertheless enables those affected to uphold their constitutional status (including in court) and to enforce the obligation of the employer to provide reasonable remuneration. The Government adds that proceedings are currently ongoing before the European Court of Human Rights relating to the strike ban for civil servants examined by the Committee under Convention No. 87.

The Committee notes the observations of the DGB in this respect, pointing to the 2018 decision of the Federal Constitutional Court and asserting that the principle of alimentation applicable to the individual civil servant creates a direct right to be paid commensurate with their position and having to enforce this claim in court in case of infringement is not compatible with this principle, especially considering that proceedings before administrative courts are so protracted that it is not reasonable to expect the person affected to take legal action.

The Committee takes due note of the 2018 ruling of the Federal Constitutional Court. The Committee observes that it results in a ban on the involvement of all civil servants in collective bargaining. The Committee regrets that public servants not engaged in the administration of the State are thus deprived of the right to bargain collectively granted to them by the Convention. The Committee recalls in this regard 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. It also emphasizes that while the determination of wages is an important element of the scope of collective bargaining, other terms and conditions of work and employment also fall within its scope. In view of the above, the Committee encourages the Government to continue engaging 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 previously 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. Further noting that proceedings are currently ongoing before the European Court of Human Rights in relation to the ban on the right to strike of civil servants and observing that it may also have repercussions on the right of civil servants to bargain collectively, the Committee requests the Government to provide information on the resulting decision and on any impact it may have at the national level.

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

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.

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

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.

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

The Committee takes note of the observations provided by the International Trade Union Confederation (ITUC) in a communication received on 1 September 2014. The Committee requests the Government to provide its comments in this regard.

The Committee takes note of the observations provided by the International Organisation of Employers (IOE) and the Confederation of German Employers’ Associations (BDA) in a communication received on 1 September 2014, according to which the Convention is fully implemented in law and in practice.

The Committee notes that the Government’s report has not been received. It must therefore repeat its previous comments.

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, including teachers. The Committee noted that, in response to its previous comments, the Government stated that excluding civil servants (Beamte) from collective bargaining is in accordance with the Convention, since the position of public servants is explicitly excluded under Article 6 of the Convention. The Committee further noted that, according to the Government’s report, employees in the public service (Arbeitnehmer des öffentlichen Dienstes), e.g. 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 legislative regulation of the civil service is a constitutionally endowed traditional principle of the civil service under article 33(5) of the Basic Law and because civil servants (Beamte) have the duty to exercise their functions lawfully, impartially and altruistically. The Government stressed that, even for particular groups of civil servants (Beamte), collective bargaining which is aimed at concluding collective agreements is incompatible with the principle of the legislative regulation of the civil service, and that this remains valid regardless of the outcome of wage negotiations by employees in the public service (Arbeitnehmer des öffentlichen Dienstes). The Committee also noted the Government’s indication that to compensate for the inability to enter into collective negotiations, the umbrella organizations of the civil servants’ unions take part in the initial preparation of the general regulations pertaining to civil servant law, pursuant to section 118 of the Federal Law on Civil Servants (Bundesbeamtengesetz (BBG)) and section 53 of the Law on the Status of Civil Servants (Beamtenstatusgesetz). The Government had considered that the current system of trade union involvement sufficiently protects the interests of civil servants (Beamte) so that no changes in this respect are necessary.

The Committee understands that the position of the Government concerning the right to collective bargaining of civil servants (Beamte) is conditioned by the wording of the constitutional provisions. The Committee reiterates that negotiations need not necessarily lead to legally binding instruments so long as account is taken in good faith of the results of the negotiations in question. The Committee also observed that the Government indicates that, contrary to teachers with the status of civil servant (Beamte), teachers with the status of employee in the public sector (Arbeitnehmer des öffentlichen Dienstes) enjoy the right to collective bargaining (which the Committee understands is also available to private sector teachers). In this regard, the Committee wishes to underline that, pursuant to Article 6, the Convention “does not deal with the position of public servants engaged in the administration of the State”, and therefore covers all public service workers other than those engaged in the administration of the State. The Committee thus considers that a distinction must be drawn between, on the one hand, public servants who by their functions are directly engaged in the administration of the State (that is, civil servants employed in government ministries and other comparable bodies) as well as officials acting as supporting elements in these activities and, on the other hand, persons employed by the government, by public undertakings or by autonomous public institutions; only the former category can be excluded from the scope of the Convention.

Recalling that, according to Article 6 of the Convention, public service workers who are not engaged in the administration of the State, including teachers, should enjoy the right to collective bargaining, the Committee once again requests the Government to indicate in its next report the measures taken or envisaged to explore, together with the trade union organizations concerned, ways in which the current system could be developed so as to give full effect to the principles enounced above.

The Committee hopes that the Government will make every effort to take the necessary action in the near future.

Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

The Committee notes the comments of the International Trade Union Confederation (ITUC) dated 4 August 2011 on the application of the Convention as well as the Government’s observations 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, including teachers. The Committee notes that, in response to its previous comments, the Government states that excluding civil servants (Beamte) from collective bargaining is in accordance with the Convention, since the position of public servants is explicitly excluded under Article 6 of the Convention. The Committee further notes that, according to the Government’s report, employees in the public service (Arbeitnehmer des öffentlichen Dienstes), e.g. 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 legislative regulation of the civil service is a constitutionally endowed traditional principle of the civil service under article 33(5) of the Basic Law and because civil servants (Beamte) have the duty to exercise their functions lawfully, impartially and altruistically. The Government stresses that, even for particular groups of civil servants (Beamte), collective bargaining which is aimed at concluding collective agreements is incompatible with the principle of the legislative regulation of the civil service, and that this remains valid regardless of the outcome of wage negotiations by employees in the public service (Arbeitnehmer des öffentlichen Dienstes). The Committee also notes the Government’s indication that to compensate for the inability to enter into collective negotiations, the umbrella organizations of the civil servants’ unions take part in the initial preparation of the general regulations pertaining to civil servant law, pursuant to section 118 of the Federal Law on Civil Servants (Bundesbeamtengesetz (BBG)) and section 53 of the Law on the Status of Civil Servants (Beamtenstatusgesetz). The Government considers that the current system of trade union involvement sufficiently protects the interests of civil servants (Beamte) so that no changes in this respect are necessary.

The Committee understands that the position of the Government concerning the right to collective bargaining of civil servants (Beamte) is conditioned by the wording of the constitutional provisions. The Committee reiterates that negotiations need not necessarily lead to legally binding instruments so long as account is taken in good faith of the results of the negotiations in question. The Committee also observes that the Government indicates that, contrary to teachers with the status of civil servant (Beamte), teachers with the status of employee in the public sector (Arbeitnehmer des öffentlichen Dienstes) enjoy the right to collective bargaining (which the Committee understands is also available to private sector teachers). In this regard, the Committee wishes to underline that, pursuant to Article 6, the Convention “does not deal with the position of public servants engaged in the administration of the State”, and therefore covers all public service workers other than those engaged in the administration of the State. The Committee thus considers that a distinction must be drawn between, on the one hand, public servants who by their functions are directly engaged in the administration of the State (that is, civil servants employed in government ministries and other comparable bodies) as well as officials acting as supporting elements in these activities and, on the other hand, persons employed by the government, by public undertakings or by autonomous public institutions; only the former category can be excluded from the scope of the Convention.

Recalling that, according to Article 6 of the Convention, public service workers who are not engaged in the administration of the State, including teachers, should enjoy the right to collective bargaining, the Committee once again requests the Government to indicate in its next report the measures taken or envisaged to explore, together with the trade union organizations concerned, ways in which the current system could be developed so as to give full effect to the principles enounced above.

Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee takes note of the comments by the International Trade Union Confederation (ITUC) dated 26 August 2009 on the application of the Convention.

Several of the Committee’s previous comments concerned the procedures through which the conditions of employment of civil servants, including teachers, are determined. The Committee notes that the ITUC refers to the lack of further progress on the modernization of the civil service legislation under the present Government.  The Committee notes that the Government, in its report, indicates that it is the responsibility of the Länder and not of the federal Government to employ teachers and to decide whether they should be hired as civil servants or under a collective agreement and that to compensate for civil servants’ lack of strike rights and inability to enter into wage negotiations, the umbrella organizations of the civil servants’ unions take part in the initial preparation of the general regulations pertaining to civil servant law, at the federal level under section 118 of the federal law on civil servants (BBG), and in the Länder under section 53 of the law on the status of civil servants. The Committee also notes that the Government indicates that in the case of the recent reform laws (the law reforming the public service law (Dienstrechtsneuordnungsgesetz) and the law on the status of civil servants (Beamtenstatusgesetz)) the consultative procedure was respected and umbrella organizations were involved in the legislative process at an early stage. 

The Committee once again recalls that it is contrary to the Convention to exclude from the right to collective bargaining those categories of public employees who are not engaged in the administration of the State. In this respect, the Committee considers that teachers carry out different duties from officials engaged in the administration of the State, and therefore of the “BUND” and should enjoy the guarantees provided for under Article 4 of the Convention. The Committee recalls that negotiations need not necessarily lead to legally binding instruments so long as account is taken in good faith of the results of the negotiations in question.

In the light of the above comments, the Committee once again requests the Government to indicate in its next report the measures taken or contemplated to study, together with the trade union organizations concerned, ways in which the current system could be developed so as to ensure a proper application of the Convention.

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

The Committee takes note of the Government’s report and its observations on the comments of the International Trade Union Confederation (ITUC).

The Committee’s previous comments concerned the procedures through which the conditions of employment of civil servants, including teachers, are determined. The Committee had noted in 2005 that a major reform of the civil service was under way and that consultations and dialogue with public servants’ trade unions had been an important element in the context of the preparation of draft legislation on the public service. It further notes from the Government’s reply of 2006 to the comments of the ITUC that the conditions of employment of civil servants, including teachers, are, according to constitutional law principles, laid down in national laws and that, consequently, there is no provision for collective bargaining, even for individual categories of civil servants. The Government underlines that section 94 of the Federal Public Service Act (Bundesbeamtengesetz) and the relevant Länder legislation provides for the participation of public servants’ unions in drawing up the regulations applicable to civil servants which constitute more than mere consultation but less than binding co-determination. The Government stresses that teachers are subject to the jurisdiction of the individual Länder administrations and that the latter decide whether to hire teaching staff as civil servants or as normal employees who have the right to collective bargaining. The Committee also notes from the Government’s latest report that the draft legislation on comprehensive modernization of the law concerning public servants was dropped following the change in Government.

The Committee recalls that it is contrary to the Convention to exclude from the right to collective bargaining those categories of public employees who are not engaged in the administration of the State. In this respect, the Committee considers that teachers carry out different duties from officials engaged in the administration of the State, and therefore should enjoy the guarantees provided for under Article 4 of the Convention. The Committee recalls that negotiations need not necessarily lead to legally binding instruments so long as account is taken in good faith of the results of the negotiations in question. The Committee expresses the hope that the positive experience recently acquired through close consultation and dialogue with the public servants’ trade unions will provide further opportunities to ensure that teachers can engage in formal negotiations and fully exercise the right to collective bargaining.

In the light of the above comments, the Committee once again requests the Government to indicate in its next report measures taken or contemplated to study, together with the trade union organizations concerned, ways in which the current system could be developed so as to ensure a proper application of the Convention.

Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes the comments of the International Confederation of Free Trade Unions (ICFTU) of 10 August 2006, which refer to issues relating to the application of the Convention in practice that are now being examined. The Committee further notes a recent communication from the Government.

The Committee will examine the comments from the ICFTU and the reply from the Government at its next meeting and it requests the Government to communicate, in accordance with the regular reporting cycle and in time for the Committee’s next session (November-December 2007), its observations on all the legislative issues and issues relating to the application of the Convention in practice mentioned in its previous observation in 2005 (see 2005 observation, 76th Session).

Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee takes note of the Government’s report.

The Committee’s previous comments concerned the collective bargaining rights of teachers who are part of the civil service in Germany. The Committee had invited the Government to pursue initiatives and to adopt the necessary measures to ensure that teachers are not excluded from the right to collective bargaining since they are not engaged in the administration of the State and should therefore enjoy the guarantees provided for under Article 4 of the Convention.

The Committee notes from the Government’s report that the conditions of employment of civil servants, including teachers, are laid down in national laws. Although there are no formal negotiations with the unions, the Civil Servants’ Act (Bundesbeamtengesetz) provides for the involvement of public servants’ unions in procedures which constitute more than a hearing but less than formal employer-employee co-management. Last year saw innovative developments in the process of collaboration with the unions, aiming at the development of draft legislation on the comprehensive modernization of the law governing civil servants. As this law will entail considerable changes in their conditions of employment, it was decided that civil servants should be involved in discussions at an early stage in order to win their broad support. Against this backdrop, even the basic issues paper on which the new legislation will be based was drawn up in collaboration with the leaders of the main unions. Thus, it has been possible to set up a conceptual framework creating conditions for a more performance-related approach in the public service. In drawing up the draft legislation, constructive dialogue with the unions has continued in order to harmonize the expectations and ideas of the parties, given that the proposed reform will affect about 1.7 million civil servants at the federal, Länder and local levels. Among numerous changes, the old salary system is being replaced with a system in which pay will depend primarily on individual performance and the nature of the work actually carried out. Other changes concern measures to make the law governing civil service careers more flexible by opening up career criteria and simplifying and revoking many regulations.

The Government concludes by stating that this collaboration with the unions went far beyond any previous form of participation and has proven to be effective.

The Committee takes note of this positive information, in particular the fact that consultations and dialogue with public servants’ trade unions have been an important element in the context of the preparation of draft legislation concerning the conditions of employment of public servants. The Committee recalls that the Convention refers to “negotiation between employers or employers’ organizations and workers’ organizations, with a view to the regulation of terms and conditions of employment by means of collective agreements”. The Committee recalls that negotiations need not necessarily lead to legally binding instruments so long as account is taken in good faith of the results of the negotiations in question. The Committee expresses the hope that the positive experience acquired through close consultation and dialogue with the public servants’ trade unions will provide further opportunities to ensure that teachers can engage in formal negotiations and fully exercise the right to collective bargaining and requests the Government to keep it informed of developments in this respect.

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

The Committee notes the Government’s report.

The Committee recalls that the issue at stake relates to the collective bargaining rights of teachers. In this respect, the Committee indicates once again that it is contrary to the Convention to exclude from the right to collective bargaining large categories of workers employed by the State but who are not engaged in the administration of the State. In this respect, the Committee considers that teachers carry out different duties from officials engaged in the administration of the State, and therefore should enjoy the guarantees provided for under Article 4 of the Convention. The Committee thus invites the Government to study ways with the trade union organizations concerned, in order to ensure a proper application of the Convention.

In its penultimate report, the Government indicated that the Federal Ministry of the Interior and the trade unions signed an agreement on 6 September 2000 under which the experiment of a draft regulation on career, training and examinations was successfully concluded. This project aimed at testing a more extensive collaboration with the trade unions and similar involvement of the leading organizations was planned for further suitable projects. In its report under examination, the Government indicates that the Federal Government will continue, where appropriate, such activities and that, to this date, it has not been possible to arrange for a follow-up project.

The Committee takes note of this information. It invites the Government, with the trade unions concerned, to pursue the initiatives concerning the follow-up project to which it refers, as well as to adopt the necessary measures to ensure the application of the Convention. The Committee requests the Government to keep it informed in its next report.

Observation (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee notes the Government’s report. As regards the collective bargaining rights of teachers, the Committee recalls that it had previously considered that it could not allow the exclusion from the terms of the Convention of large categories of workers employed by the State merely on the grounds that they were formally placed on the same footing as public officials engaged in the administration of the State and who, by their functions, were directly employed in the administration of the State - such as, for example, civil servants employed in government ministries and other comparable bodies. The Committee had further considered that teachers carried out duties different from officials engaged in the administration of the State, and therefore should enjoy the guarantees provided for under Article 4 of the Convention. Finally, the Committee had invited the Government, along with the trade union organizations concerned, to study ways in which the current system could be developed so as to ensure a proper application of the Convention.

The Government states in its report that pursuant to section 94 of the Federal Civil Servants’ Act, the leading organizations of civil servants’ unions are involved in the preparation of the general regulations of civil service law in order to compensate for the fact that there is no collective bargaining. The right of the legislator to lay down fundamental principles governing the legal status of civil servants and the organization of their working conditions through legal norms of the State is not, however, to be changed in any way. Furthermore, the Government points out that on 6 September 2000, the Federal Ministry of the Interior and the trade unions signed an agreement, which successfully concluded the experiment of a draft ordinance on regulations pertaining to career, training and examinations. The objective of this project was to test more extensive collaboration with the trade unions. It was a pilot project, in which the trade unions had the opportunity to contribute their experience with a view to designing training courses for the various categories through intensive cooperation in the planning activities. Dialogue with the leading organizations played a major role in this process, and similar intensive involvement of the leading organizations in further suitable projects is planned.

The Committee takes note of this information and requests the Government to keep it informed in future of the outcome of such projects.

Observation (CEACR) - adopted 1999, published 88th ILC session (2000)

The Committee notes the Government's report. With reference to the collective bargaining rights of teachers, the Government states that the procedure for the participation of central trade union organizations in the formulation of the general regulation of conditions for civil servants pursuant to section 94 of the Federal Civil Servants Act is based on an agreement between the Federal Ministry of the Interior and the central organizations of the relevant trade unions, which was concluded in 1993 and revised in 1996. The Government points out that following one union's abrogation of this agreement on 31 December 1998 (the agreement still applies to the other unions), a pilot project was launched with the unions' participation with the aim of extending participation rights. On the basis of the outcome of that project, there will be discussions with the unions on ways of further developing the participation process. The Government is nevertheless of the view that the legal position of civil servants in Germany and the actual methods used to determine their employment conditions meet the requirements of the Convention, even without collective bargaining.

While taking note of the Government's comments, the Committee reiterates once again that it cannot allow the exclusion from the terms of the Convention of large categories of workers employed by the State merely on the grounds that they are formally placed on the same footing as public officials engaged in the administration of the State and who, by the functions, are directly employed in the administration of the State - such as, for example, civil servants employed in government ministries and other comparable bodies (see 1994 General Survey on freedom of association and collective bargaining, paragraph 200). The Committee considers that teachers carry out duties different from officials in the administration of the State, and therefore should enjoy the guarantees provided for under Article 4 of the Convention.

In the light of the above comments, the Committee invites the Government, together with the trade union organizations concerned, to study ways in which the current system could be developed so as to ensure a proper application of the Convention. In this regard, the Committee notes that the pilot project launched in 1999 with the participation of the unions concerned may provide a suitable mechanism for such an effort. The Committee requests the Government to keep it informed of the outcome of that project.

Observation (CEACR) - adopted 1997, published 86th ILC session (1998)

The Committee notes the Government's report. Following its previous observations, it also notes the conclusions of the Committee on Freedom of Association in Case No. 1820 (see 302nd Report, paragraphs 80 to 111, approved by the Government Body at its March 1996 session).

As regards teachers, the Committee, referring to the above-mentioned Case, notes that the Committee on Freedom of Association stressed that "teachers do not carry out tasks specific to officials in the State administration; indeed this type of activity is also carried out in the private sector. In these circumstances (it) stresses the importance that teachers with civil servant status should enjoy the guarantees provided for under Convention No. 98." The Committee on Freedom of Association further stated that "within the framework of the public service regulations (in which Parliament adopts legislation in the final instance), it might be necessary for collective bargaining to be conducted by means of special procedures and in this respect, Convention No. 98 allows a certain flexibility ... Therefore, within the overall framework of public service regulations established by the Constitution and German legislation, it should be possible, while maintaining the budgetary prerogatives of the legislature, to find a formula which would not only allow for a mere hearing but also the possibility for teachers with civil service status to bargain collectively."

The Committee notes that the Government states in its report that the procedure for the participation of central trade union organizations in the general regulation of conditions for civil servants pursuant to section 94 of the Civil Servants Act is the object of an agreement between the Federal Ministry of the Interior and the central organizations of the relevant trade unions, which was concluded in 1993 and revised in 1996. The Government adds that similar agreements exist in the Länder. It is therefore of the view that the participation of the central trade union organizations in the regulation of working conditions for civil servants in Germany, while differing from the collective bargaining that takes place for employees in the private and public sectors, occurs in such a manner that there is no violation of Article 4 of the Convention.

While taking due note of the Government's comments, the Committee recalls that it could not allow the exclusion from the terms of the Convention of large categories of workers employed by the State merely on the grounds that they are formally placed on the same footing as public officials engaged in the administration of the State and who, by the functions, are directly employed in the administration of the State -- such as, for example, civil servants employed in Government ministries and other comparable bodies (see 1994 General Survey on freedom of association and collective bargaining, paragraph 200). The Committee considers, like the Committee on Freedom of Association, that teachers carry out duties different from officials in the state administration; indeed, this type of activity is also carried out in the private sector and therefore teachers with civil servant status should enjoy the guarantees provided for under Convention No. 98.

In the light of the above comments, the Committee would invite the Government, together with the trade union organizations concerned, to study ways in which the current system could be developed so as to ensure a proper application of the Convention.

Observation (CEACR) - adopted 1995, published 83rd ILC session (1996)

The Committee notes the Government's report. The Committee also notes the communication from the German Union of Salaried Employees (DGB) and the Teachers' Union (GEW) making a number of observations concerning the right to collective bargaining of teachers. The Committee proposes to examine these observations once the Committee on Freedom of Association has examined a complaint made against the Government of Germany on the same matter (Case No. 1820).

Direct Request (CEACR) - adopted 1991, published 78th ILC session (1991)

The Committee notes the enactment, on 23 March 1989, of the Act to introduce an additional registry (ISR) for seagoing vessels under the International Transport Flag of the Federal Republic, section 2 of which deals with the employment relationship of certain crew members on merchant vessels registered in the ISR.

The Committee requests the Government to provide in its next report information on the practical application of these new provisions.