Observación (CEACR) - Adopción: 1991, Publicación: 78ª reunión CIT (1991)

Convenio sobre la libertad sindical y la protección del derecho de sindicación, 1948 (núm. 87) - Alemania (Ratificación : 1957)

The Committee notes the information supplied by the Government in its report in reply to the Committee's previous comments, and the conclusions and recommendations of the Committee on Freedom of Association in Case No. 1528 (277th Report, approved by the Governing Body at its 249th Session in February 1991).

The Committee recalls that its previous comments concerned the following points:

- denial of the right of access to the workplace for trade union officials who do not belong to an enterprise;

- requisitioning of employees in the postal service having the status of civil servants (Beamte), who do not act in a capacity as agents of the public authority, in order to replace striking postal workers having the status of state manual workers or employees (Angestellte);

- protest strikes.

1. Access to the workplace for trade union officials who do not belong to an enterprise. On this point, the Government refers to its previous comments and states, basically, that: Convention No. 87 does not impose such an obligation upon it and, even if such were the case, it would not be obliged to take action since the Committee itself only requires that trade union officials have access when necessary and this question is not a point of dispute between employers and workers.

The Committee recalls that it has been making comments for many years on this point, which was the subject of a discussion in the Committee on the Application of Standards at the International Labour Conference in 1985. It refers, in particular, to its observation of 1989 in which it described in detail the point of view of the German Confederaion of Trade Unions (DGB) on this matter. It requests the Government to indicate in its next report the measures that have been taken to guarantee trade union officials, including those who do not belong to an enterprise, access to the workplace in an enterprise if they consider it necessary.

2. Requisitioning of civil servants (Beamte) to replace striking state employees and manual workers (Angestellte) in the public service. The Government states, in this connection, that the Federal Constitutional Court has not yet handed down its ruling on this matter and it prefers not to comment on the question until a ruling is issued.

The Committee recalls once again that, when national legislation prohibits or restricts strikes in the public service or in essential services, such restrictions become meaningless if the legislation defines the public service or essential services too broadly. Accordingly, any prohibition of strikes should be confined to public servants acting in their capacity as agents of the public authority or to services whose interruption would endanger the life, personal safety or health of the whole or part of the population.

The Committee also refers to the decision of the Committee on Freedom of Association in Case No. 1528, in which that Committee ruled that teachers having the status of civil servants (Beamtete Lehrer) should be able to enjoy the right to strike.

The Committee therefore requests the Government:

- to indicate in its next report the measures that have been taken to guarantee that public servants who do not act in a capacity as agents of the public authority, and particularly teachers (Beamtete Lehrer) and postmen, counter clerks and telephonists in the postal service (Angestellte and Beamte) have the right to strike;

- to transmit to it the ruling of the Federal Constitutional Court when it has been handed down.

3. Protest strikes. The Government reiterates its previous comments on this point, which it summarises as follows:

- Convention No. 87 contains no provisions respecting the right to strike; assuming that such a right exists, it is restricted by Article 8(1);

- workers' organisations can influence the legislative process, challenge the constitutionality of laws and demonstrate, outside normal working hours, against the economic and social policy of the Government.

The Committee nevertheless recalls its previous comments on this point and emphasises that, while purely political strikes are not included in the rights guaranteed by the Convention, Article 3 of the latter provides that workers' organisations should have the right to organise their administration and activities and to formulate their programmes.