Holidays with Pay Convention (Revised), 1970 (No. 132) - Germany (Ratification: 1975)

Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

Article 9 of the Convention. Postponement of holidays. The Committee notes the comments made by the German Confederation of Trade Unions (DGB), which were received on 5 September 2013 and transmitted to the Government on 17 September 2013, concerning the application of the Convention. The DGB considers that the Federal Holidays Act does not give effect to Article 9 of the Convention, as it provides that annual leave must be taken at the latest within three months from the end of the year in respect of which the entitlement to leave has arisen. The DGB also expresses the view that labour courts have declined to interpret the provisions of the Federal Holidays Act, in particular section 7(3) which provides that the right to holidays is time barred at the end of the first quarter of the following year, in a manner consistent with the requirements of the Convention. The Committee requests the Government to transmit any comments it may wish to make in response to the observations of the DGB.

Article 11. Compensation for unused leave upon termination of employment. The Committee recalls its previous comments concerning section 7(4) of the Federal Holidays Act, and the manner in which it has been interpreted by national labour courts to permit the forfeiture of compensation for unclaimed holiday entitlement where a worker is incapable of working at the time of termination, and this incapacity continues until the final date to which holiday entitlement can be deferred (i.e. 31 March of the following year). The Committee understands that in the light of recent case law of the European Court of Justice (Case C-214/10), the Federal Labour Court had to review its position and in a decision of 7 August 2012 (9 AZR 353/10) has ruled that the loss of the holiday claim in case of an employee’s long-term illness is lawful upon the expiry of 15 months after the end of the year in which the holiday accrued. The Committee requests the Government to keep the Office informed of any legislative changes which may be envisaged in the light of recent ECJ rulings and relevant decisions of national courts regarding the compatibility of certain provisions of the Federal Holidays Act with the Convention and EU Law.

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

Article 11 of the Convention. Compensation relating to holiday due but not taken upon termination of employment. The Committee recalls that for many years it has been commenting on the application in practice of section 7(4) of the Federal Holidays (BUrlG) Act of 8 January 1963, requesting the Government essentially to confirm that, in all cases, including in the case of sick leave, all workers are entitled, upon termination of employment, to a proportionate holiday with pay or to compensation, as prescribed by this Article of the Convention.

In reply to the Committee’s repeated comments, the Government has for a long time indicated its intention firstly to codify the employment contract legislation, including examining the provisions relating to holiday, and, secondly, to reform the labour legislation as part of its economic stimulation programme covering the period up to 2010, one of the main objectives of which is to create a modern and flexible labour law framework as well as the general conditions for job creation and security. While considering the reform of its labour law, the Government also indicated that it wished to study whether and how the legislation in force governing paid holiday could be reformed, including giving consideration to the application of Article 11 of the Convention. In its latest report, the Government refers to a case currently before the Court of Justice of the European Communities which concerns, inter alia, the legal matters covered by Article 11 of the Convention (request for a preliminary ruling from the Labour Court of Dusseldorf, RS C-350/06) and indicates that, as soon as the Court of Justice has published its decision, the Government will consider whether it is necessary to introduce a reform relating to holidays.

The Committee notes the ruling handed down by the Court of Justice in January 2009, which establishes clearly that workers may not be deprived of their annual holiday with pay or the compensation relating to that holiday on account of the fact that they were not in a position to work when the employment was terminated. The Committee also notes with interest that both the Court’s ruling and the Advocate-General’s conclusions refer expressly to the provisions of Convention No. 132 and emphasize the importance of taking into account the essential principles of the Convention when interpreting the provisions of Directive 2003/88/EC of 4 November 2003 concerning certain aspects of the organization of working time. The Committee therefore requests the Government to provide further information on any developments concerning the application of Article 11 of the Convention, in both law and practice, in the light of the Committee’s previous comments and the ruling handed down by the Court.

Part V of the report form. Application in practice. The Committee notes the detailed information contained in the Government’s report concerning the duration of the holiday of various categories of workers covered by collective agreements. The Committee requests the Government to continue providing general information on the manner in which the Convention is applied in practice and, in particular, extracts from the reports of the inspection services indicating the number of violations reported relating to annual holiday with pay and the penalties imposed, statistics indicating the number of workers covered by the legislation, copies of collective agreements containing provisions relating to annual holiday with pay, etc.

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

The Committee notes the Government’s indication that the matter of clarification on the practical application of Article 11 of the Convention is still pending. With reference to its previous comments, the Committee hopes that the Government will not fail to provide in its next report detailed information on measures taken or envisaged to give effect to this provision of the Convention and to keep the ILO informed of any developments in this respect.

Direct Request (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee notes the information in the Government’s report for the period up to 31 May 2000.

Article 11 of the Convention. The Committee notes with regret that the codification of the employment contract legislation that is supposed to implement Article 11 of the Convention has been postponed once again. With reference to its previous comments, the Committee hopes that the Government will not fail to provide in its next report detailed information on measures taken or envisaged to give effect to this provision of the Convention and keep the ILO informed of any recent developments in this respect.

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

The Committee notes the Government's report for the period up to April 1996 and the information provided in reply to its previous direct request.

Article 11 of the Convention. The Committee notes the information according to which the examination of issues regarding holidays with pay in the framework of employment contract law codification is postponed. With reference to its previous comments, the Committee hopes that the Government will not fail to provide in its next report detailed information on measures taken or envisaged to give effect to this provision of the Convention and keep the ILO informed of any recent developments in this respect.

Direct Request (CEACR) - adopted 1995, published 82nd ILC session (1995)

The Committee notes with interest from the Government's latest report, that the Federal Holidays Act has been amended by section 2 of the Hours of Work Act of 6 June 1994, granting all workers throughout the Federal Republic of Germany a minimum holiday of 24 working days. It also notes the detailed information contained in the Government's report on the duration of leave for various categories of workers under collective agreements.

With reference to its previous direct request, the Committee further notes the Government's indication in its report that the matter of clarification on the practical application of Article 11 of the Convention, will be dealt with after the Federal Parliamentary Elections held in October 1994. The Committee would be grateful if the Government would indicate any more recent developments in this respect.

The Government is asked to report in detail in 1996.

Direct Request (CEACR) - adopted 1992, published 79th ILC session (1992)

Article 11 of the Convention. In its previous comment, the Committee noted the information supplied by the German Confederation of Trade Unions (DGB) concerning certain judicial decisions, according to which workers might forfeit compensation for unclaimed holiday entitlement through their inability to work at the time of termination and for a time afterwards. The DGB considered these decisions incompatible with the Convention.

The Government has now supplied copies of the judgements in question. In so far as they refer to the Convention, they seem to rely on the applicability of Article 11 to persons who have completed a minimum period of service in conformity with Article 5(1); and the courts have noted that, although Article 5(4) provides for absence from work for such reasons as illness, injury or maternity to be counted as part of the period of service, this is the case only under conditions to be determined by the competent authority or through the appropriate machinery in each country. It has thus apparently been regarded as permissible under the Convention to limit the extent to which such absence is counted as part of the period of service, so as to make an exception from Article 11 in cases where performance of the employment contract is disturbed or otherwise frustrated - especially since Article 11 is held not in itself to give any guidance as to how it should be applied or how the claim to compensation in lieu could be satisfied in such cases. The courts have taken this view whether the question is regulated by legislation or collective agreement.

Whilst the Committee is most grateful for these explanations, it considers that some difficulties do seem to arise in these circumstances. Article 11 is clearly worded in a manner intended to leave a certain margin of flexibility to States bound by the Convention as regards the form of the benefit to be received on termination. The Committee notes, however, that the Article 11 benefit is one which - given the terms of that Article - is a right enjoyed by any employed person who has completed a minimum period of service; and reference is made to Article 5(1) in that respect. On this basis, and on an ordinary reading of Article 11, it would seem that, once such qualifying period (which under Article 5(2) may not exceed six months) has been completed, the right to the benefit in question vests in the employed person in question without further qualification. The Committee considers that Article 11 specifies quite adequately that the benefit may be claimed in the form of compensation, and in this connection the Committee refers also to the provisions in Article 7 relating to holiday remuneration.

The Committee would be glad if the Government would provide further information as to the manner in which this aspect of the Convention is applied in practice and any further measures taken or contemplated in this regard.

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

The Committee notes the comments of the German Federation of Trade Unions (DGB) as well as the Government's response.

Article 11 of the Convention. According to the information provided both by the DGB and the Government, in 1983 the Federal Labour Court made an interpretation of section 7, paragraph 4, of the Federal Leave Act which provides in part that "(w)here all or part of the leave can no longer be granted owing to the cessation of the employment relationship, compensation shall be payable in lieu". The Court considered permissible the forfeiture of compensation for unclaimed holiday entitlement where a worker is incapable of working at the time of termination and this incapacity continues during the current year or until the final date to which holiday entitlement can be deferred (31 March of the following year). The DGB considers this incompatible with the Convention.

The Committee would be grateful if the Government would provide a copy of the relevant decision; and if it would indicate any more recent developments in this respect.

The Government is asked to report in detail for the period ending 30 June 1991.