Demande directe (CEACR) - adoptée 2024, publiée 113ème session CIT (2025)

Convention (n° 144) sur les consultations tripartites relatives aux normes internationales du travail, 1976 - Allemagne (Ratification: 1979)

The Committee notes the observations of the Confederation of German Employers' Associations (BDA), received on 15 September 2023, and the Government’s reply, received on 31 October 2023.

Articles 2 and 5 of the Convention. Effective tripartite consultations. The Committee notes the Government’s indication that it regularly gives the relevant employers’ and workers’ organization the opportunity to provide comments on all the issues mentioned in Article 5(1) of the Convention and/or to hold in-depth discussions with them, and that it maintains regular contact with the social partners on a wide variety of ILO related matters. In this respect, the Committee notes the information provided by the Government regarding tripartite consultations held during the reporting period on the replies to questionnaires concerning items on the agenda of the International Labour Conference and comments on proposed texts to be discussed by the Conference (110th, 111th and 112th Sessions), and the reports on ratified Conventions to be communicated to the Office under article 22 of the Constitution. Moreover, the Committee notes with interest that, following tripartite consultations, the Maternity Protection Convention, 2000 (No. 183), the Violence and Harassment Convention, 2019 (No. 190) and the Safety and Health in Agriculture Convention, 2001 (No. 184) were ratified on 30 September 2021, 14 June 2023 and 12 June 2024, respectively. The Government adds that the reports on unratified Conventions and Recommendations to be sent to the Office pursuant to article 19(5)(e) of the ILO Constitution are regularly brought to the attention of the social partners and that the social partners regularly meet in advance of or at the beginning of the Governing Body sessions and Conference in order to discuss the topics on the agenda.

Observations made by the BDA. The Committee notes that, in its observations, the BDA refers to the letter dated 14 July 2023 sent by the Government to the ILO Director General expressing support of the request made by the Workers’ group to place an item on the agenda of the 349th Session of the Governing Body (October–November 2023) for urgent discussion and decision on a referral to the International Court of Justice (ICJ) for an advisory opinion concerning the interpretation of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) in relation to the right to strike. In this respect, the BDA expresses its deep concern that the Government did not undertake effective consultations with the social partners on this important matter prior to sending its letter. The BDA concludes that the Government failed to comply with the Convention and undermined its voice as the most representative employers’ organization and hindered tripartism in the country.

In its response to these comments, the Government states that the letter mentioned by the BDA, which was issued without prior consultation with the social partners, does not violate the provisions of the Convention. In particular, the Government indicates that, taking into account the scope of the Convention, it does not see a basis for a potential violation. In this respect, the Government indicates that: (i) Articles 2 and 5 of the Convention list specific issues linked by their direct proximity to the ILO’s standard setting procedures that shall be addressed through tripartite consultations at the national level; (ii) the explicit and conclusive wording of Article 5 does not foresee mandatory tripartite consultations before requesting items to be placed on the agenda of the Governing Body or the Conference; (iii) the Tripartite Consultation (Activities of the International Labour Organisation) Recommendation, 1976 (No. 152) neither contains such an obligation. The Government concludes that, instead, the Convention aims to ensure national consultations to prepare for important agenda items (specifically of the Conference in the field of standard-setting), which have already been set. This also serves the purpose of enabling the government to review its position by taking the feedback from national social partners into account. Lastly, the Government indicates that, after a decade of consultations, social dialogue and negotiations where no consensus-based solution had been found, it was essential for the EU and its Member States to achieve legal certainty by using the constitutional provision of article 37 of the ILO Constitution and referring the matter to the ICJ.

In this context, the Committee recalls that “under the terms of Article 2(1), of the Convention, effective consultations between representatives of the government, of employers and of workers have to cover “matters concerning the activities of the International Labour Organisation set out in Article 5(1) of the Convention. The matters enumerated in this provision relate to the Organization’s standard-setting activities; consultations must be held on: proposed texts, the submission to the competent authorities of the instruments which are adopted, their re-examination at appropriate intervals, the reports to be made on ratified Conventions and proposals for the denunciation of ratified Conventions.” (General Survey of 2000 on tripartite consultations, paragraph 74). The Committee emphasizes in this respect that Recommendation No. 152 suggests that the extent should be determined to which these consultation procedures should also be used for other aspects of ILO activities, and trusts that the Government will consider with its social partners any other areas for tripartite consultation, as appropriate.