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

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

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.