Demande directe (CEACR) - adoptée 1992, publiée 79ème session CIT (1992)

Convention (n° 132) sur les congés payés (révisée), 1970 - Allemagne (Ratification: 1975)

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.