Solicitud directa (CEACR) - Adopción: 1990, Publicación: 77ª reunión CIT (1990)

Convenio sobre la discriminación (empleo y ocupación), 1958 (núm. 111) - Alemania (Ratificación : 1961)

1. Referring to its observation on the Convention, the Committee recalls that the Commission of Inquiry which examined a complaint concerning discrimination on the grounds of political opinion in employment in the public service presented its report in February 1987. The Commission of Inquiry concluded that measures taken in respect of employment in certain public services at the federal level and in certain Länder in application of the duty of faithfulness to the free democratic basic order had in various respects not remained within the limits of the restrictions authorised by Article 1, paragraph 2, of Convention No. 111 on the basis of the inherent requirements of particular jobs. It also concluded that, as exemplified by the cases brought to its attention, those measures did not fall within the exception provided for in Article 4 of the Convention (concerning activities prejudicial to the security of the State). The Commission of Inquiry formulated a series of recommendations to correct this situation. In a letter addressed to the Director-General of the ILO in May 1987, the Government indicated its disagreement with the conclusions reached by the Commission of Inquiry; it stated that it saw no cause to depart from its earlier position (namely, that national legislation and practice were in conformity with the Convention), and that it did not intend to refer the questions at issue to the International Court of Justice.

The Government has continued to maintain that position, both in its reports and in its statements to the Conference Committee. In the latest report, the Government has provided no information on any measures taken with a view to bringing law and practice in the Federal Republic regarding employment in the public sector into conformity with the Convention, nor has it given particulars of judicial decisions rendered during the period under review (information on the latter aspect has become available from other sources). The Government has expressed the view that, in the light of developments in the Communist parties of Eastern Europe and the repercussions which they may have on the German Communist Party (DKP), there would be no point in stating any detailed position at present on the question of the duty of faithfulness in the German public service. The Government has indicated its intention to follow closely developments in political extremism in the Federal Republic and to communicate its views in the light of any changes that may occur.

The Committee observes that, in the three years that have elapsed since the Commission of Inquiry presented its report, only one significant development has occurred in regard to its recommendations: in July 1988, following a change of government, the Land of Schleswig-Holstein abolished the practice of systematic inquiry from the authority for the protection of the Constitution in regard to all applicants for employment in the public service (Regelanfrage). The federal authorities and other Länder whose manner of applying the provisions relating to the duty of faithfulness to the Constitution of persons employed or seeking employment in the public service was found by the Commission of Inquiry to be inconsistent with the requirements of Convention No. 111 (Baden-Württemberg, Bavaria, Lower Saxony, Rhineland-Palatinate) have made no changes in their legislation or practice. In the case of these authorities, proceedings against a number of persons have been systematically pursued and, where judgements favourable to those concerned have been given at first instance, the authorities have lodged appeals. Generally, those in service have been suspended from their work, with reduction of salary, while the proceedings were pending. Consequently, in the period since the ILO inquiry was completed, an appreciable number of persons have continued to be adversely affected in employment and occupation (by loss or refusal of employment, demotion, suspension and loss of income). These measures have not been based on any reproach regarding the manner in which those concerned have carried out their professional duties, but on their participation in certain lawful political activities, such as standing as candidates at elections or serving as elected members of town councils.

In previous reports and in statements to the Conference Committee, the Government has continued to express its disagreement with the conclusions of the Commission of Inquiry. The Committee of Experts recalls that article 29 of the ILO Constitution empowers a government which does not accept the recommendations of a commission of inquiry to refer the matter to the International Court of Justice, in which case the Court may affirm, vary or reverse any of the Commission's findings or recommendations (article 32). Where, as in the present case, a government chooses not to avail itself of that possibility of review by the International Court of Justice, it ought to act upon the recommendations of the Commission of Inquiry.

In its statement to the Conference Committee in 1989, the Government once more sought to find justification for its position in the fact that one member of the Commission of Inquiry had dissented from its conclusions. It is a general rule of law, applicable to courts and other bodies called upon to formulate findings and rulings, that, where a decision is not unanimous, the majority view prevails. The Committee recalls, moreover, that in the present case the member of the Commission of Inquiry who stated a minority view did not question the findings of fact, but considered that Convention No. 111 had to be read subject to Article 5 of the International Covenant on Civil and Political Rights. As the Committee of Experts pointed out in its observation of 1988, the Article in question provides (inter alia) that nothing in the Covenant may be interpreted so as to permit the limitation of the rights and freedoms recognised in it "to a greater extent than is provided for in the present Covenant". Any attempt to read this Article into Convention No. 111 would thus be in direct contradiction to its own provisions.

In its statement to the Conference Committee in 1989, the Government also once more referred to decisions of the courts of the Federal Republic and of the European Court of Human Rights. These aspects have already been fully considered by the Commission of Inquiry and by the Committee of Experts. The Commission of Inquiry noted that the judgements of the European Court of Human Rights to which the Government has referred were based on the fact that the European Convention on Human Rights did not recognise the right of access to public service, as a result of which the Court did not feel called upon to examine whether the restrictions on employment in the public service were justified, whereas that was the question at issue in the ILO inquiry. The decisions of the European Court of Human Rights, based on a particular interpretation of the European Convention, thus have no relevance to the issues before the ILO inquiry. The decisions of the courts of the Federal Republic have based themselves on the provisions in force within the country and on the view that neither Convention No. 111 nor the conclusions of an ILO commission of inquiry have any direct binding effect in domestic law. They therefore provide no justification for disregarding the obligation, under article 19 of the ILO Constitution, to make the provisions of Convention No. 111 effective, nor for failure to act upon the recommendations of the Commission of Inquiry. On the contrary, if the courts do not consider themselves bound to apply Convention No. 111, then it is incumbent upon the Government to initiate the necessary measures to ensure its observance. As the Commission of Inquiry pointed out, if that result cannot be brought about by other measures, then, in accordance with Article 3(b) of the Convention, appropriate legislative action should be taken.

The Committee of Experts once more expresses the hope that action will be taken to ensure the observance of Convention No. 111 in regard to employment throughout the public service, in accordance with the recommendations of the Commission of Inquiry.

2. The Committee notes that the Federal Labour Court gave judgement on 14 March 1989 in cases concerning the compensation to be awarded to workers who had suffered discrimination in employment on grounds of sex. It requests the Government to communicate the texts of these judgements.

3. The Committee notes that the preparatory work for further legislation to adapt labour law to the requirements of the EEC has almost been completed, and that in this legislation it is proposed particularly to prescribe effective penalties for cases of sex discrimination in the engagement and promotion of workers. The Committee requests the Government to provide information on progress in the enactment of this legislation and to communicate copies thereof, once adopted.

4. The Committee has noted the information given by the Government on the measures taken to promote the training of women in occupations which had hitherto been filled predominantly by men, and the statistics concerning the evolution of the situation in this respect. It requests the Government to continue to provide information on the measures taken to overcome traditional attitudes regarding jobs considered appropriate for men and for women, and on the results obtained.

5. The Committee notes that the information requested from the Land employment offices on the implementation of Circular No. 98/86 of 2 July 1986 regarding equality of treatment in placing in employment and in vocational training will become available only in the course of 1990. It hopes that the Government will be able to provide information on this matter in the next report.

6. The Committee notes that the report of the Federal Minister for Youth, Families, Women and Health on the implementation of the Directive of 24 February 1986 for the promotion of employment of women in the federal administration is in the process of being drawn up. It hopes that the Government will be able to communicate a copy of this document with the next report.

7. Please indicate whether similar information is available concerning the extent of the employment of women, at various levels of responsibility, in the administration of the Länder, local authorities, and other public entities. If so, please communicate relevant documentation.

8. The Committee has noted the extracts from the report of the Federal-Länder Committee on the planning of training and the promotion of research provided by the Government, relating to the promotion of the employment of women in the field of science. It notes that most Länder have adopted legislative provisions similar to section 2(2) of the Federal Act of 14 November 1985 to amend the Framework Act for Higher Educational Establishments, aimed at removing handicaps affecting access by women to scientific positions, and that in Saarland corresponding legislation is contemplated.

(a) The Committee would appreciate information on the adoption of the proposed provisions in Saarland.

(b) It notes that, while the federal legislation and the provisions enacted in some Länder concern only employment in scientific positions, other Länder have provided for the application of the measures in question also to promotion of access of women to non-scientific positions in higher educational establishments and to equality of opportunity for female students. The Committee would appreciate information on any steps that may be contemplated similarly to widen the scope of the measures to cover these additional aspects, where that is not yet provided for.

(c) The Committee notes that a legal basis to require the appointment of persons responsible for ensuring equality of opportunity for women in higher educational establishments does not yet exist in all Länder, and that recommendations for minimum standards regarding this matter have been made in the above-mentioned report. It would appreciate information on the measures taken to give effect to those recommendations.

(d) Please provide information on the results of the various measures referred to above.

9. The Committee has noted the further information provided by the Government regarding employment and unemployment of severely handicapped persons. It requests the Government to continue to provide information on this matter.