Texts of pending comments

In order to provide a comprehensive view of the issues relating to the application of the ratified Conventions on labour inspection, the Committee considers it appropriate to examine Conventions Nos 81 and 129 together.

Legislation. The Committee notes the information provided by the Government regarding the adoption of the Act to improve the enforcement of occupational health and safety, which entered into force on 1 January 2021. The Committee notes that this Act provides for the strengthening of OSH measures mostly in the meat industry while also adopting some amendments to the Occupational Health and Safety Act (ArbSchG) of 7 August 1996, including provisions on inspection. In particular, the Committee notes that according to the new section 21(1a) of the ArbSchG, starting from 1 January 2026, for each calendar year there shall be a minimum annual inspection rate of 5 per cent of the companies operating in the country. The Committee also notes the measures introduced in the new section 21(3a) of the ArbSchG, which provides that the inspection authorities of the Länder shall, after 1 January 2023, transmit information regarding inspections and their results to the accident insurance institution responsible for the inspected establishment.

Article 3(1) and (2) of Convention No. 81 and Article 6(1), (2) and (3) of Convention No. 129. Protection of the rights of foreign workers in an irregular situation concerning their residence status and cooperation with government services and public or private institutions. In its previous comment, the Committee requested the Government to provide information on the notifications to the immigration authorities by labour inspectors, pursuant to section 23(3) of the ArbSchG. It also requested the Government to indicate how it ensures the enforcement of legislation with respect to the payment of wages and other benefits for the period of the effective employment relationship of the foreign workers concerned. The Committee notes the Government’s indication that there were no notifications provided by the labour inspectors to the immigration authorities in 2016 and 2017 pursuant to section 23(3) of the ArbSchG. The Government reports that the inspectors working for personal accidents insurers are asked only sporadically for findings that go beyond their core tasks, which are related to monitoring of occupational safety and advising employers on occupational safety compliance. The Committee also notes the Government’s indication that the responsibility for inspections under the Act to Combat Undeclared Work and Unlawful Employment essentially lies with the Customs Authority’s Tax Enforcement Unit for Undeclared Work (FKS). The Committee further notes that, in reply to its previous comment, the Government reiterates that foreign workers in an irregular situation can assert their rights against employers in the same way as workers in a regular situation or national workers and, in case of a dispute, they can refer their case to the labour courts. While noting that the primary responsibility for the enforcement of the Residents Act and the Act to Combat Undeclared Work and Unlawful Employment lies with other Government agencies, the Committee requests the Government to continue to provide information on the notifications made by labour inspectors to immigration and/or prosecution authorities in application of section 23(3) of the ArbSchG. The Committee also requests the Government to provide further information on the actions undertaken by labour inspectors in those cases where, in the discharge of their duties, they encounter violations of the legal provisions related to conditions of work and protection of wages for migrant workers. In this regard, the Committee requests the Government to collect and provide information on the outcome of judicial proceedings resulting from investigations initiated following actions taken by labour inspectors.

Articles 20 and 21 of Convention No. 81 and Articles 26 and 27 of Convention No. 129. Content of the annual labour inspection reports. The Committee notes that the labour inspection report 2019, hyperlinked in the Government report, contains information on all the subjects listed in Article 21(a)–(g) of Convention No. 81. The Committee also notes that, in reply to its previous request concerning the compliance of the labour inspection report with Article 27 of Convention No. 129, the Government indicates that breakdown statistics for the agricultural sector are reflected in the report with regard to inspection activities carried out by the agricultural employers’ liability insurance association under the Social Insurance Fund for Agriculture, Forestry and Horticulture (SVLFG). Concerning the labour inspectors of the Länder, the Government reports that there are no disaggregated data on the number of inspectors working specifically on agriculture. The Government indicates that this is because inspectors may be responsible for multiple sectors or have cross-sector responsibilities. The Government also indicates that there is no breakdown by sector of the statistics concerning the number of inspection visits conducted and of violations and penalties imposed by the inspection authorities of the Länder. Further, the Committee notes the Government’s indication that a Länder working group has been set up and started working in order to improve the reporting and the collection of sector-based statistics by the inspection authorities of the Länder. The Committee requests the Government to provide information on the progress made by the Länder working group in order to improve the reporting of labour inspection activities in the agricultural sector, in particular concerning the requirements of Articles 27(d) and (e) of Convention No. 129 on statistics of inspection visits conducted and of violations and penalties imposed in agriculture.

Issues specifically concerning labour inspection in agriculture

Articles 4 and 21 of Convention No. 129. Coverage of certain categories of agricultural workers by labour inspection and their registration to ensure their protection through labour inspection. The Committee notes that in its previous comment, it requested the Government to provide information on the system for the registration of workers in agriculture (including apprentices, dependent workers and temporary workers) and the availability of such data to the different labour inspection services. The Committee notes that the Government refers to section 28a(4) of the Social Code (SGB) Fourth Book (IV), Common Provisions for Social Security, which provides for the obligation of the employers operating in the sectors listed in this provision, to report information concerning each employee to the data centre of the pension insurance provider. The Government also indicates that as part of an automated retrieval process, the FKS, which is responsible for inspecting provisions on minimum wage, is able to view the reference data available to the pension insurance provider’s data centre. The Government further indicates that with regard to occupational safety and health, all agricultural enterprises have an accident insurance coverage within the SVLFG’s agricultural accident insurance scheme, which facilitates access to information regarding agricultural establishments. The Committee also notes that in previous reports the Government referred to the Joint German Occupational Health and Safety Strategy (GDA) as the framework of cooperation between the labour inspection authorities of the Länder and the accident insurance providers. Noting that agriculture is not listed among the sectors included in section 28a (4) of the SGB IV, the Committee requests the Government to clarify how the authorities in charge of inspecting provisions on minimum wage can benefit from a system of registration of workers in agriculture in order to ensure an effective labour inspection strategy which includes the protection of particularly vulnerable workers. The Committee also requests the Government to indicate the measures taken in order to ensure that inspection authorities in the Länder have access to the data concerning the agricultural undertakings that have accident insurance coverage within the SVLFG’s agricultural accident insurance scheme. In this respect, it also requests the Government to indicate whether the GDA contains a specific component on cooperation concerning inspection in the agricultural sector.

Articles 6(1)(b), 14, 19 and 21 of Convention No. 129. Effectiveness of labour inspection activities in agriculture. In its previous comment, the Committee requested the Government to provide information on (i) the number of workers in agricultural undertakings, including those that are not subject to mandatory social insurance; (ii) the number of labour inspectors working at the SVLFG and the labour inspection authorities in the Länder; (iii) the number of labour inspections undertaken by the SVLFG and the labour inspection authorities in the Länder during the reporting period; as well as (iv) the number of occupational accidents and cases of occupational disease reported in agriculture during the reporting period. The Committee notes the Government’s reference to the labour inspection report, which provides the number of agricultural workers covered by social security contributions. In addition, the Committee already noted above the Government’s indication that the labour inspectors of the Länders deal with all sectors and there is no inspection staff dealing exclusively with agriculture. The Committee further notes that, according to the labour inspection report, the number of inspectors working for the SVLFG continued to decrease, from 457 in 2017 to 433 in 2019 and that the number of visits conducted by the SVLFG also decrease from 59.906 in 2017 to 40.874 in 2019. In addition, the Committee notes that the number of fatal accidents in the agricultural sector is the highest after the public sector, which includes defence and social insurance administration. In this regard, the Committee requests the Government to provide the statistics concerning agricultural workers that are not subject to mandatory social insurance. It also requests the Government to provide information on the measures undertaken and planned in order to make sure that the number of labour inspectors in agriculture is sufficient to secure the effective discharge of their duties and to ensure that agricultural undertakings are inspected as often and as thoroughly as is necessary to ensure the effective application of the relevant legal provisions. The Committee also requests the Government to provide information on the manner in which inspectors are associated with any inquiry on the spot into the causes of accidents with fatal consequences in accordance with Article 19(2) of the Convention.

The Committee notes the observations of the Confederation of German Employers’ Associations (BDA) and the German Confederation of Trade Unions (DGB), received on 31 August 2021 and referring to the matters addressed below.

Article 3 of the Convention. Right of workers’ organizations to organize their administration and activities and to formulate their programmes. The Committee recalls that it has been requesting for a number of years the adoption of measures to recognize the right of public servants who are not exercising authority in the name of the State to have recourse to strike action. The Committee had previously noted with interest a 2014 ruling handed down by the Federal Administrative Court holding that, given that the constitutional strike ban depends on the status group and is valid for all civil servants (Beamte) irrespective of their duties and responsibilities, there is a collision with the European Convention on Human Rights (ECHR) in the case of civil servants (Beamte) who are not active in genuinely sovereign domains (hoheitliche Befugnisse), for instance teachers in public schools, and this collision should be solved by the federal legislator; and that, in the case of civil servants (Beamte) who exercise sovereign authority, there is no collision with the ECHR and thus no need for action. The Committee also noted that in its 2015 ruling, the Federal Administrative Court confirmed that it is the task of the federal legislator to establish a balance between the incompatible requirements of Article 33(5) of the Basic Law and Article 11 of the ECHR and that, as long as this has not been done, the public-law strike prohibition continues to apply and is a disciplinary rule.

In its previous comment, having noted that a complaint had been raised before the Federal Constitutional Court in relation to the 2014 Federal Administrative Court judgment, the Committee requested the Government to provide a copy of the decision of the Federal Constitutional Court, as well as any other pending decision issued by it on the subject. In view of the collision ascertained by the Federal Administrative Court between Article 33(5) of the Basic Law and Article 11 of the ECHR and in light of the persisting need highlighted by the Committee for many years to bring the legislation into full conformity with the Convention with regard to the same aspect, the Committee once again requested the Government to: (i) refrain, pending the relevant decision of the Federal Constitutional Court, from imposing disciplinary sanctions against civil servants not exercising authority in the name of the State (such as teachers, postal workers and railway employees) who participate in peaceful strikes; and (ii) to engage in a comprehensive national dialogue with representative organizations in the public service with a view to finding possible ways of aligning the legislation with the Convention.

The Committee notes the Government’s indication that in its decision of 12 June 2018 (Case No. 2 BvR 1738/12), the Federal Constitutional Court held, contrary to the 2014 judgment of the Federal Administrative Court, that: (i) for civil servants, irrespective of their duties, the strike ban amounts to an independent traditional principle of the career civil service system (Berufsbeamtentum) within the meaning of Article 33(5) of the Basic Law, which justifies an overriding of freedom of association; (ii) this is closely linked to the civil service principle of alimentation (Alimentationsprinzip), according to which civil servants are paid salary commensurate with the civil service position, and also to the duty of loyalty, the principle of lifetime employment and the principle that the legal relationship under civil service law (including remuneration) must be regulated by the legislature; (iii) there is no need for an express legal provision concerning a strike ban for civil servants; (iv) the strike ban for civil servants in Germany is consistent with the principle of interpreting the Basic Law in a manner compatible with international law, as well as with guarantees of the ECHR, as there is no identifiable conflict between German law and Article 11 of the ECHR; and (v) regardless of the question of whether the strike ban for civil servants actually represents an encroachment on Article 11(1) of the ECHR, it would in any case be justified either under the first or the second sentence of Article 11(2) based on the particularities of the German system of the career civil service. The Committee further observes from the text of the ruling that the Federal Constitutional Court opined that: (i) granting the right to strike, even for certain groups of civil servants only, would trigger a chain reaction with regard to the structuring of the civil service, would fundamentally change the system of German civil service law and would interfere with the core of the structural principles guaranteed under Article 33(5) of the Basic Law; (ii) dividing civil servants into groups that have or do not have the right to strike based on their different functions would entail difficulties of distinction that are connected to the concept of public authority and would create a special category of civil servants with the right to strike or civil servants subject to collective agreements, who would be given the possibility of enforcing demands regarding their working conditions through labour dispute measures where applicable, while keeping their civil servant status - this would raise the question to what extent this category of personnel could still be regarded as having the legal status of civil servants; and (iii) to compensate for the civil servants’ lack of possibility to influence their employment conditions by measures of labour dispute, Article 33(5) of the Basic Law affords them, among others, the subjective public right to have the constitutionality of their alimentation reviewed in court, which would be almost completely meaningless if civil servants had the right to strike. The Government adds that proceedings against the strike ban for civil servants are currently ongoing before the European Court of Human Rights.

The Committee notes the observations of the BDA in this respect, pointing to the 2018 decision of the Federal Constitutional Court and indicating that although the concept of freedom of association also includes the right to industrial action (strike and lock-out), this Convention and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98) do not regulate or expressly provide for a right to strike. According to the BDA, the manner in which industrial action is organized in practice is always regulated in line with the particular Conventions but at the national level. The Committee also notes the observations of the DGB, claiming that there should be no absolute exclusion of civil servants from the right to strike irrespective of their duties and that a strike ban based on status, as established by the Federal Constitutional Court, represents a hindrance to any practical concordance between Articles 9(3) and 33 of the Basic Law. The DGB argues that a genuine balancing exercise would mean that the strike ban can only remain in place for those officials who genuinely exercise the sovereignty of the State and that civil servants who do not genuinely exercise the sovereignty of the State must benefit from the right to strike to preserve and promote their employment conditions.

The Committee takes due note of the ruling of the Federal Constitutional Court that for civil servants, irrespective of their duties, the strike ban amounts to an independent traditional principle of the career civil service system within the meaning of section 33(5) of the Basic Law, which justifies an overriding of freedom of association. Moreover, the Committee wishes to make clear that its task is not to judge the validity of the Court decision of 12 June 2018 (Case No. 2 BvR 1738/12), which is based upon issues of German national law and precedents. The Committee’s task is to examine the outcome of this decision on the recognition and exercise of the workers’ fundamental right to freedom of association. In this regard, the Committee observes with regret that the result of the Court’s decision is not in keeping with the Convention, inasmuch as it amounts to a general ban on the right to strike of civil servants based on their status, irrespective of their duties and responsibilities, and in particular a ban on the right of civil servants who are not exercising authority in the name of the State (such as teachers, postal workers and railway employees) to have recourse to strike action. In view of the above, the Committee encourages the Government to continue engaging in a comprehensive national dialogue with representative organizations in the public service with a view to finding possible ways of aligning the legislation more closely with the Convention. Further noting that proceedings against the strike ban for civil servants are currently ongoing before the European Court of Human Rights, the Committee requests the Government to provide information on the resulting decision and on any impact it may have at the national level.

The Committee previously noted with interest that, in relation to the 2012 DGB observations denouncing the lack of a general prohibition of the use in non-essential services of temporary workers as strike breakers, national legislation had been amended to ensure that the receiver was no longer allowed to hire agency workers as strike breakers (according to section 11(5) of the Manpower Provision Act, in effect from 1 April 2017, the receiver shall not allow agency workers to work if the business is directly involved in a labour dispute). The Committee notes with interest the Government’s indication in this respect that: (i) the deployment of agency workers in industries affected by industrial action is only possible if there is an assurance that they will not take over the jobs of those on strike, either directly or indirectly; (ii) a constitutional complaint against this provision had been brought before the Federal Constitutional Court, claiming that there was a breach of the employer’s freedom of association in that its defences (specifically the use of agency workers during industrial action) were being illegitimately constrained, amounting to undue interference in the ability to carry out a profession; and (iii) in its decision of 19 June 2020 (Case No. 1 BvR 842/17), the Federal Constitutional Court found that the regulation concerned was constitutional and the applicant’s rights had not been infringed.

The Committee notes the observations of the Confederation of German Employers’ Associations (BDA) and the German Confederation of Trade Unions (DGB), received on 31 August 2021, which mainly relate to matters examined by the Committee under the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).

Articles 4 and 6 of the Convention. Right to collective bargaining with respect to conditions of employment of public servants not engaged in the administration of the State. The Committee recalls that it has been requesting, for a number of years, the adoption of measures to ensure that public servants who are not engaged in the administration of the State, enjoy the right to collective bargaining. The Committee had previously noted with interest a 2014 ruling handed down by the Federal Administrative Court holding that, while the prohibition of collective bargaining deriving from article 33(5) of the Basic Law is linked to the civil servant status and applies to all civil servants irrespective of their duties, article 11(2) of the European Convention on Human Rights (ECHR) provides that restrictions to freedom of association could only be justified by the relevant function of the civil servant; and that, in the case of civil servants not exercising sovereign authority of the State, for instance teachers in public schools, there is a collision, which needs to be solved by the federal legislator. According to the Federal Administrative Court, in view of the collision between article 33(5) of the Basic Law and article 11 of the ECHR, the federal legislator needed to considerably broaden, in public service domains that were not characterized by the exercise of genuinely sovereign authority, the participation rights of trade unions of civil servants towards a negotiation model.

In its previous comment, having noted that a complaint had been raised before the Federal Constitutional Court in relation to the 2014 Federal Administrative Court judgment, the Committee requested the Government to provide a copy of the decision of the Federal Constitutional Court, as well as any other pending decision issued by it on the subject. It also requested the Government once again to engage in a comprehensive national dialogue with representative organizations in the public service with a view to exploring innovative solutions and possible ways in which the current system could be developed so as to effectively recognize the right to collective bargaining of public servants who are not engaged in the administration of the State, including for instance, as indicated by the BDA, by differentiating between areas of genuinely sovereign domains and areas where the unilateral regulatory power of the employer could be restricted to extend the participation of representative organizations in the public service.

The Committee notes the Government’s indication that in its decision of 12 June 2018 (Case No. 2 BvR 1738/12) the Federal Constitutional Court held that: (i) the universal freedom of association derived from article 9(3) of the Basic Law does not contain exclusions for specific professions and therefore applies unconditionally not only to public sector workers but also to civil servants; (ii) this does not mean, however, that any restrictions to freedom of association are automatically excluded, as even fundamental rights may be restricted as a result of conflicting third-party rights and other rights with constitutional status; (iii) the traditional principle of the career civil service system guaranteed by article 33(5) of the Basic Law amounts to one such restriction with constitutional status; (iv) the ban on the involvement of civil servants in collective bargaining is closely linked to the duty of loyalty, the principle of lifetime employment and the civil service principle of alimentation (Alimentationsprinzip), which requires employers to provide civil servants and their families with reasonable lifetime remuneration and a standard of living corresponding to their seniority, the level of responsibility associated with their office and the relevance of the career civil service to the general public, in line with economic and financial growth in general; (v) the entirely objective guarantee of a reasonable standard of living under article 33(5) of the Basic Law establishes an individual right each civil servant holds vis-à-vis the State, equivalent to a fundamental right, to have the constitutionality of their alimentation reviewed in court; and (vi) the ban on civil servants taking part in collective bargaining thus follows from the traditional principle of the career civil service system but the individual right nevertheless enables those affected to uphold their constitutional status (including in court) and to enforce the obligation of the employer to provide reasonable remuneration. The Government adds that proceedings are currently ongoing before the European Court of Human Rights relating to the strike ban for civil servants examined by the Committee under Convention No. 87.

The Committee notes the observations of the DGB in this respect, pointing to the 2018 decision of the Federal Constitutional Court and asserting that the principle of alimentation applicable to the individual civil servant creates a direct right to be paid commensurate with their position and having to enforce this claim in court in case of infringement is not compatible with this principle, especially considering that proceedings before administrative courts are so protracted that it is not reasonable to expect the person affected to take legal action.

The Committee takes due note of the 2018 ruling of the Federal Constitutional Court. The Committee observes that it results in a ban on the involvement of all civil servants in collective bargaining. The Committee regrets that public servants not engaged in the administration of the State are thus deprived of the right to bargain collectively granted to them by the Convention. The Committee recalls in this regard that it has been highlighting for many years that, pursuant to Articles 4 and 6 of the Convention, all public service workers, other than those engaged in the administration of the State, should enjoy collective bargaining rights. It also emphasizes that while the determination of wages is an important element of the scope of collective bargaining, other terms and conditions of work and employment also fall within its scope. In view of the above, the Committee encourages the Government to continue engaging in a comprehensive national dialogue with representative organizations in the public service with a view to exploring innovative solutions and possible ways in which the current system could be developed so as to effectively recognize the right to collective bargaining of public servants who are not engaged in the administration of the State, including for instance, as previously indicated by the BDA, by differentiating between areas of genuinely sovereign domains and areas where the unilateral regulatory power of the employer could be restricted to extend the participation of representative organizations in the public service. Further noting that proceedings are currently ongoing before the European Court of Human Rights in relation to the ban on the right to strike of civil servants and observing that it may also have repercussions on the right of civil servants to bargain collectively, the Committee requests the Government to provide information on the resulting decision and on any impact it may have at the national level.

The Committee takes note of the additional information provided by the Government in light of the decision adopted by the Governing Body at its 338th Session (June 2020). The Committee proceeded with the examination of the application of the Convention on the basis of the supplementary information received from the Government and on the basis of the information at its disposal in 2019.

The Committee also notes the observations of the German Confederation of Trade Unions (DGB) received on 30 September 2019, as well as the additional observations of the DGB received on 28 October 2020

Articles 1, 2 and 3 of the Convention. Implementation of an active employment policy. Employment trends and the impact of the COVID-19 pandemic. In its previous comments, the Committee requested the Government to provide information on the impact of active employment measures adopted to promote full, productive and sustainable employment opportunities, including for young persons, particularly those between 20 and 25 years of age. The Committee notes the legislation adopted during the reporting period, in particular the Bridge Part-Time Work Act of 11 December 2018 on Further Development of Part-Time Employment Law and the Act for the Promotion of Vocational Further Education in Structural Change and the Further Development of Educational Support of 20 May 2020. The Committee further notes the information provided, by both the Government and the DGB, on the serious social and economic impact of the COVID-19 pandemic on the German labour market. The Government indicates that, prior to the pandemic, the unemployment rate was at its lowest since the Reunification of the country. However, the pandemic has left deep marks on the German labour market and eroded the positive developments of recent years. The Committee notes that, during the pandemic, “Kurzarbeit” (shorter working hours arrangements) have reached a historically unprecedented level, with six million workers on shorter hours. In April 2020, 20 per cent of workers covered by mandatory social insurance across all sectors were drawing short-time allowances. The COVID-19 crisis has led to an increase in unemployment of about 620,000 persons between March and August 2020. The Committee notes with interest the series of measures taken by the Government to mitigate the impact of the pandemic on the labour market. A large range of support programmes and services, such as professional integration, career advice, vocational education and training (VET) courses, integration allowances, start-up grants and short time allowances, have been provided for those at risk of unemployment or already unemployed, as well as for young people at the beginning of their working lives. The Government has also taken measures to mitigate the negative impact of the pandemic on VET, in particular, through the approval and funding of the “Securing Apprenticeships” programme in 2020, which seeks to maintain training places and apprenticeships to give young people future employment prospects. The Government also refers to the development of a National Training Strategy (NTS), 2019, which is designed to prepare both individuals and society for structural changes and new challenges such as automation and digitalization. The Committee notes that in the framework of the NTS, an innovation competition, “Digital Platform Vocational Training (INVITE)” was launched in April 2020, to promote greater use of digitalization opportunities for future learning. Moreover, the Committee notes that labour market equality officers are present at all institutional levels to assist the administration of the particular federal agency (employment agencies, job centres, regional directorates and the head office of the Federal Employment Agency) in achieving the objectives of equal treatment of women and men. The Committee invites the Government to continue to provide updated information in its next report on the impacts of the global COVID-19 pandemic on the application of the Convention, including the challenges encountered and lessons learned. In particular, the Committee invites the Government to provide information on the effects of the measures taken to mitigate the impact of the pandemic. In this regard, the Committee requests statistical information on the impact of these measures in minimising the adverse impact of the pandemic on the Government’s policies for employment, unemployment, underemployment.

Employment services. The DGB observes that the Skilled Workers Immigration Law, which came into force on 1 March 2020, targets and manages the migration of skilled workers from non-European countries who seek to access the German labour market. The market is open to unregulated domestic or foreign private agencies, which often recruit workers in return for a fee and assign them to work in Germany. The DGB maintains that it is aware of numerous cases of abuse in the context of private work placements, not least by private recruitment agents based abroad, who operate without supervision and should be subject to certification. In light of the observations of the DGB, the Committee requests the Government to provide detailed information on any measures taken or envisaged, in consultation with the social partners, to regulate the activities of private recruitment agencies operating on German territory. In this regard, the Committee invites the Government to consider the possibility of ratifying the Private Employment Agencies Convention, 1997 (No. 181).

Long-term unemployment. The Committee previously requested the Government to provide information on the measures undertaken to help long-term unemployed persons to obtain lasting employment and to provide information regarding the impact of the “Open opportunities – secure social participation” programme. The Committee notes the Government’s indication that, in 2018, the number of long-term unemployed fell by 320,000 persons. In this respect, the Committee notes the series of measures taken by the Government to reduce long-term unemployment, including the “MitArbeit” (Cooperation) programme, developed to help the long-term unemployed into work through a holistic programme of intensive support, individual advice and effective funding, while at the same time offering them concrete employment opportunities. The Government further indicates that the Act on the Flexibilization of the Transition from Working Life to Retirement, and the Strengthening of Prevention and Rehabilitation in Working Life (Flexi-Pensions Act) of 8 December 2016 offers older workers the possibility of taking their full pension early or taking a partial pension and combining it with part-time work. The Committee requests the Government to continue to provide detailed updated information, including statistical data disaggregated by age and sex, on the nature and impact of measures taken to reduce long-term unemployment.

Young persons. In response to its previous comments, the Committee notes the statistics provided by the Government on youth unemployment. In particular, it notes that the unemployment rate among young people has increased following the outbreak of the COVID-19 pandemic, from 4.2 per cent in June 2019 to 6.3 per cent in July 2020. The DGB observes that, in 2019, 14.2 per cent of young workers (aged under 25) were working under temporary employment contracts, many of which ended during the pandemic, increasing youth unemployment. The Government refers to a series of measures aimed at supporting vocational training, apprenticeship and employment of young people. The Committee notes the impact of the “Future Starter” [Zukunftsstarter] initiative, which, during the reporting period, has given approximately 100 000 young adults (25 to 35) the opportunity to take up a first apprenticeship or to complete a vocational qualification. The Committee further notes various measures taken by the Government to promote youth employment, including for young persons with disabilities and disadvantaged youth. In this regard, the Government indicates that comprehensive and flexible labour market support schemes have continued to be available during the reporting period, supported by a high volume of funding in the Federal Employment Agency’s budget to support young people with disabilities and assist them in accessing vocational apprenticeships. The Government refers to the activities of the “youth employment agencies”, collaborative structures designed to promote cooperation between employment agencies, job centres and youth support providers to more effectively reach disadvantaged young people. In this regard, the Committee notes the creation of the “youth employment agencies service point”, an exchange and support structure for youth employment agencies, based at the Institute for Vocational Training (BIBB). It further notes the development of the “YouConnect” project, which aims to provide customized, ongoing support and funding for the vocational training of people with learning difficulties, or those who are socially disadvantaged. The Committee requests the Government to continue to provide updated detailed information on the impact of measures taken or envisaged to tackle youth unemployment, especially in the context of the current pandemic, as well as information, including statistical data disaggregated by age and sex, on the impact of the measures on young persons’ access to lasting employment, including young persons with disabilities and disadvantaged youth.

Refugees. In its previous comments, the Committee requested the Government to provide detailed information, including statistics, on the outcome of the measures taken to integrate refugees into the labour market. The DGB observes that no other group of workers has been as severely affected by the pandemic as migrants and refugees. In June 2020, the number of unemployed foreign passport holders had risen by some 37 per cent compared with the previous year (25 per cent in the case of Germans). Many refugees, for whom employment or an apprenticeship is the main condition for remaining in Germany, have been affected by massive redundancies that have aggravated their already threatening situation. The Government indicates that numerous legislative amendments have been introduced and various measures have been taken to facilitate social and economic integration of refugees in the labour market. These measures include acceleration of the asylum process, expanded German language and integration courses, assessment of professional qualifications, funding programmes and recognition of previous informal and formal qualifications of asylum seekers. The Committee notes that in 2018 the number of refugees in vocational apprenticeships increased by 16 000 persons compared to 2017 and that the overall employment rate of refugee workers has more than doubled since 2016 (14.5 per cent), reaching 34.4 per cent in April 2020. The Committee notes, however, that since June 2019 the number of refugees seeking work has fallen from 490,000 to 455,000 persons and the number of unemployed refugees has increased slightly, from 181,000 to 196,000. The Government indicates that research for the period covering October 2017 to March 2021 will be conducted to assess progress in relation to the integration of refugees into the labour market. The Committee requests the Government to provide information on the measures taken to mitigate the impact of the pandemic and to improve the labour market situation, in particular for those groups and individuals that encounter difficulties in entering and remaining in the labour market and who may have been made vulnerable by the outbreak, in particular, refugees. The Government is further requested to keep the Office informed of the results of the impact assessment research on the integration of refugees into the German labour market and to provide a copy of it once it has been finalized.

“Mini-jobs.” Temporary agency workers. In response to the Committee’s previous comments, the Government indicates that, over the last four years, the share of mini-jobs has declined. However, the DGB observes that, in June 2019, there were approximately 7.6 million people in marginal employment in Germany and one in five self-employed workers was in a “mini-job”. The number of mini-jobs grew approximately 43 per cent between June 2003 and June 2018. In addition, in the first two months of the COVID-19 crisis, 415,000 mini-jobs disappeared. Of these, 250,000 represented people exclusively in marginal employment, a majority of whom were women. Those in mini-jobs have no entitlement to unemployment benefit or to short-time allowances. The DGB further observes that, since May 2020, there has been a slight increase in the number of mini-jobs. Demands are growing to consolidate and expand mini-jobs by increasing the €450 monthly income limit. The DGB considers that any such measure would further undermine the social security system. The Government indicates that to remove the burden of social insurance contributions from low-income earners, the amount of their contribution has been decreased. The Committee notes that the Government is undertaking an impact assessment of the reform of the Temporary Employment Act of 2017 to enable itself to assess the Act’s impact on the mini-jobs market. The Committee invites the Government to provide updated information on the impact of measures developed and implemented, in consultation with the social partners, to promote lasting employment for and improve the situation of “mini-job” workers. It further requests the Government to provide information on the conclusions of the impact assessment of the Temporary Employment Act of 2017.

The Committee notes the observations of the German Trade Union Federation (DGB) received on 31 August 2021, alleging gaps in the protection of workers’ representatives, in particular with respect to attempts at preventing works council ballots. The Committee notes that the DGB points to the adoption of the Works Council Modernization Act, 2021, amending the Works Constitution Act, 2001, which governs the establishment and functioning of works councils and alleges that while some improvements have been made in the legislation, gaps remain both in matters of protection of workers’ representatives and the applicable sanctions. The Committee further notes the Government’s indication that the Works Constitution Act and the European Works Councils Act have been amended as a result of new laws adopted between 2016 and 2020, but observes that the Government does not refer to the Works Council Modernization Act mentioned by the DGB. In line with the above, the Committee requests the Government to provide its reply to the DGB observations and to indicate the amendments made to the relevant national legislation, whether the Works Constitution Act or other laws giving effect to the guarantees of the Convention, as a result of the Works Council Modernization Act, 2021 and, in particular, to clarify the effect of these amendments on the rights guaranteed by the Convention.

The Committee takes note of the Government’s report and the supplementary information provided in light of the decision adopted by the Governing Body at its 338th Session (June 2020).

The Committee also notes the observations of the German Confederation of Trade Unions (DGB) received on 21 November 2019. It further notes the additional observations of the DGB received on 10 November 2020. The Committee requests the Government to provide its comments with respect to the additional observations.

Article 2 of the Convention. Wage transparency. The Committee previously noted the adoption of the Act promoting remuneration transparency between women and men (Transparency of Remuneration Act), 2017, which introduces: (1) an individual entitlement for employees in establishments with more than 200 employees to obtain information on the median monthly gross salary of at least six employees of the other gender who perform the same work or work of equal value, as well as on the criteria and procedure used for determining the remuneration; and (2) regular reporting about the measures taken to promote gender equality and create equal pay for women and men for private sector employers with more than 500 employees, which are also encouraged to use internal company evaluation procedures to assess their remuneration system. It requested the Government to provide information on: (1) the implementation of the Transparency of Remuneration Act; and (2) the proportion of companies and employees covered by these provisions. The Committee notes the Government's statement, in its report, that several guides, leaflets and sample forms were disseminated to raise awareness of the provisions of the Transparency of Remuneration Act, and advice were provided to specific target groups, including workers and employers. The Government indicates that, as a result of an assessment carried out on the implementation of the Act in 2019, it appears that: (1) only 4 per cent of employees in enterprises with over 200 employees have made an information request; (2) 45 per cent of companies surveyed have voluntarily reviewed their in-house pay structures; and (3) 44 per cent of companies with reporting obligations indicated they were complying with the reporting obligation and 40 per cent were planning to do so. The Committee notes that, in its observations, the DGB considers that the assessment reveals that further amendments should be introduced in the Transparency of Remuneration Act, more particularly in order to: (1) ensure the right to information to all workers irrespective of the size of the company; (2) introduce an obligation to carry out certified evaluation procedures even for companies with less than 500 employees; (3) standardize the content and form of reporting obligations; (4) provide for sanctions in case of non-compliance of these requirements; and (5) introduce a right to bring a collective action so that the burden of enforcing their rights does not fall on individual workers. In that regard, the Committee notes the Government’s indication that, in a 2019 ruling (No. 16 Sa 983/18), the Berlin-Brandenburg State Labour Court decided that a woman journalist alleging pay discrimination was not able to exercise the individual right of information under the Transparency of Remuneration Act as, being a freelance worker, she was only a “quasi-employee” and not a “regular employee”. It however notes that, in its supplementary information, the Government indicates that following the claimant’s appeal to the Federal Labour Court, it was finally decided that the claimant was able to request information from the defendant on the criteria and procedures for wage-setting as she was, as a freelance employee, a “worker” within the meaning of section 5(2)(1) of the Act. The Committee asks the Government to continue to provide information on the implementation of the Transparency of Remuneration Act, including any assessment made of the level of compliance with the statutory reporting requirements on gender equality and equal pay at the company level, and any actions taken to address gender wage gaps revealed, and the impact thereof. It also asks the Government to provide information on: (i) any measures taken to enhance the implementation of the Act, including by raising awareness of workers, employers and their respective organizations about its provisions and remedies available; (ii) any measures envisaged to overcome obstacles to its effectiveness that may have been identified by the assessments carried out or the social partners; as well as (iii) the number of companies of more than 200 employees and of more than 500 employees in the country, as well as the proportion of the workforce covered by these undertakings.

Articles 2 and 3. Assessing and addressing the gender pay gap. The Committee previously noted the measures implemented by the Government to combat vertical and horizontal occupational gender segregation of the labour market, but expressed concern at the persistent high level of the gender pay gap. It requested the Government to strengthen its efforts in order to reduce the gender pay gap both in the public and private sectors, and address its underlying causes. The Committee notes, from the statistical information provided by the Government, that the unadjusted wage differentials between men and women slightly decreased from 21 per cent in 2017 to 20 per cent in 2019, while the gender pay gap remained unchanged in the public sector, being still estimated at 9 per cent in 2019. Clear variations still persist between the regions (21 per cent in the western part of the country, compared to 7 per cent in the eastern part of the country). The Committee notes that, in 2019, pay differentials between women and men were still particularly wide in scientific and technical activities (29 per cent); financial and insurance services (28 per cent); as well as information and communication (24 per cent) and manufacturing (23 per cent). It further notes the Government's statement that a number of causes of pay inequality have been identified among which: different choices of occupations, working hours, low representation of women in leadership positions and family-related career breaks and unpaid care work. In that regard, the Government refers to its comments made on the application of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111) on occupational gender segregation and reconciliation of work and family responsibilities. It notes that, in its observations, the DGB expresses concern at persistent stereotyped assumptions that the main responsibility for family care lies with women, which results in financial losses, career breaks and higher levels of women's participation in part-time work and "mini- jobs", thus adversely affecting their remuneration and pension levels. The Committee notes that, in its supplementary information, the Government indicates that a three-year programme “Strengthen enterprises, promote pay equality” was launched in July 2020 to embed the implementation of the pay equality requirement in enterprises as the core of a comprehensive company personnel policy. The Government adds that it will be supporting regular company discussions on the topic of pay equality, developing and awarding a label denoting fair employers and providing specific assistance on the subject of equal treatment and equality at work, including by providing examples of best practices. The Committee welcomes the initiatives implemented by the Government which contributed to the slight decrease in the gender pay gap. It however notes that: (1) the gender pay gap still remains as high as 21 per cent, being still one of the highest in the European Union (6 percentage points above the European Union average) ; and (2) according to the 2019 Structures of Earnings Survey, when women have the same formal qualifications and otherwise identical qualities as men, the pay gap between women and men is still 6 per cent in 2019, which was considered as an indication of latent discrimination against women in the labour market. The Committee urges the Government to strengthen its efforts to eliminate the gender pay gap, including by addressing the differences in remuneration that may be due to gender discrimination. It further asks the Government to provide: (i) information on the proactive measures implemented to that end, both in the public and private sectors, including by enhancing women’s access to jobs with career prospects and higher pay; (ii) information on any assessment made of the impact of such measures, including of the results of the “Strengthen enterprises, promote pay equality” programme; as well as (iii) statistical information on the earnings of men and women, disaggregated by economic activity and occupation, both in the public and private sectors.

The Committee is raising other matters in a request addressed directly to the Government.

The Committee takes note of the Government’s report and the supplementary information provided in light of the decision adopted by the Governing Body at its 338th Session (June 2020).

The Committee also notes the observations of the German Confederation of Trade Unions (DGB) received on 21 November 2019. It further notes the additional observations of the DGB received on 10 November 2020. The Committee requests the Government to provide its comments with respect to the additional observations.

Article 2 of the Convention. Minimum wages. The Committee previously noted the adoption of the Minimum Wage Act which introduces a general statutory minimum wage and provides that collective agreements can fix higher sectoral minimum wages. It noted that a slight narrowing of the gender pay gap had been observed after the adoption of the legislation, but that a significant number of workers were reportedly paid below the minimum wage. It requested the Government to: (1) provide statistical information on the percentage of women and men who are paid the statutory minimum wage or below the minimum wage; and (2) indicate how it is ensured that, in defining minimum wages through collective agreements, rates are fixed on the basis of objective criteria. The Committee notes the Government’s indication in its report that the rate of the statutory minimum wage is adjusted every two years on the recommendation of the tripartite Minimum Wage Commission. On 1 January 2020, this rate was raised t0 EUR 9.35 an hour (gross) and, following a decision of the Minimum Wage Commission dated 30 June 2020, it is envisaged that there will be a further increase of the statutory minimum wage for the period from 1 January 2021 to 31 December 2022 in four half-yearly increments. The Committee welcomes this information. It further notes that, in its supplementary information, the Government indicates that, according to the 2019 Structure of Earnings Survey, about 800,000 women and 600,000 men are paid the minimum wage. The Government adds that, depending on the data source, the number of workers paid below the minimum wage is estimated between 530,000 (2019 Structure of Earnings Survey) and 2.4 million (German Institute for Economic Research, 2018). In this regard, the Committee notes the Government’s statement that a more precise analysis of these aspects is planned under the statutory evaluation of the minimum wage in 2020. With regard to sectoral minimum wages determined by collective agreement, the Committee notes the Government’s indication that several collective agreements were adopted at the federal level and two collective agreements were adopted at the Länder level. It however observes that the Government has not provided information on the content of the relevant provisions or on the criteria used to set the rates for minimum wages in collective agreements. In light of the persistent gender pay gap and gender segregation of the labour market, the Committee again asks the Government to provide: (i) information on the measures taken to ensure that, when defining minimum wages through collective agreements, rates are fixed on the basis of objective criteria, free from gender bias, such as qualifications, skills, effort, responsibilities and conditions of work, and that sector-specific wages do not result in the undervaluation of jobs predominantly occupied by women in comparison to those occupied by men; (ii) an extract of the relevant provisions of collective agreements fixing minimum wages; and (iii) updated statistical information on the percentage of women and men who are paid the national minimum wage, and on the number of workers who are reportedly paid below the minimum wage, as well as information on any analysis undertaken in that respect in the framework of the statutory evaluation of the minimum wage planned in 2020.

Articles 2 and 4. Collective agreements and collaboration with the social partners. The Committee previously noted that several projects were developed in collaboration with the social partners to raise awareness of and reduce the gender pay gap. It requested the Government to provide further information on: (1) the content and impact of the activities implemented in collaboration with the social partners, particularly in rural areas, including by equal pay advisors; and (2) any follow-up measures taken on the basis of the results of the “Collective Bargaining and Equal Pay” project. The Committee notes the Government's indication that, as a result of the project implemented in collaboration with the German Association of Agricultural Women, 21 women were trained as “equal pay advisors” between 2014 and 2018 to explain to women and men in rural areas the influence of stereotypical roles on career choices and career breaks, and encourage them to share career and family responsibilities more equally. The Government adds that in 2019 a new project was launched by the German Association of Women in Agriculture aimed at supporting start-ups in rural areas as an alternative for women’s access to economic resources, with women equal pay advisors being actively involved in the training of women involved in start-up pilots. With regard to the “Collective Bargaining and Equal Pay” project ,which examined whether, to what extent and why wage bargaining can influence the gender pay gap, the Committee notes that the Government again refers to the conclusions reached, but that no information is provided on any follow-up measures undertaken in this regard. It further notes that in its observations the DGB considers that the results of this project, which has shown that the gender wage gap of workers covered by collective agreements has declined over time and is significantly below that of workers not covered by such agreements, corroborates the findings of previous studies and documents the need for legislative provisions to extend the coverage of collective agreements. The DGB further highlights the critical importance of regular tripartite discussions to examine the different aspects of the gender pay gap and elaborate possible solutions. The Committee asks the Government to continue providing information on: (i) the activities implemented in collaboration with the social partners, including by equal pay advisors, to promote the application of the principle of the Convention and their impact, particularly in rural areas; and (ii) any follow-up measures taken as a result of the conclusions of the “ Collective Bargaining and Equal Pay” project, in particular regarding the extension of the coverage of collective agreements.

Article 3. Tools for the assessment of the gender pay gap and objective job evaluation. The Committee previously noted that several tools were available to help employers identify gender disparity in their pay structure, including the “eg-check” tool and the “monitor pay transparency” tool developed to assist employers in the implementation of the Act of 2017 to promote remuneration transparency between women and men (the Transparency of Remuneration Act). It further noted that the Examination of Job Evaluation Procedures (EVA) list, which allows individual job evaluation procedures to be reviewed for gender neutrality using selected questions, was easily accessible by the social partners engaged in the bargaining process. It requested the Government to provide information on the use and impact of such tools, as well as on any other steps taken to develop and implement objective job evaluation methods. The Committee welcomes the Government’s indication that: (1) from 2017 to 2020 a number of businesses have run the “eg-check”; (2) an “eg-check” manual has been available since 2019; and (3) an equality test for small and medium-sized businesses, is currently being developed, which should adapt the “eg-check” for smaller businesses. It however notes with regret that no information has been provided on the impact of the tools already available to help employers identify gender disparity in their pay structure, or on any measures taken to enhance the development and implementation of objective job evaluation methods. In light of the persistent high level of the gender pay gap, the Committee asks the Government to provide information on: (i) the use of the various assessment tools available for employers, including the “ monitor pay transparency” and “ eg-check” tools, and the EVA list for the social partners engaged in the bargaining process; (ii) the impact of such tools in reducing the gender pay gap; and (iii) any active measures taken to promote the design and use in the private sector of objective job evaluation methods that are free from gender bias.

The Committee takes note of the Government’s report and the supplementary information provided in light of the decision adopted by the Governing Body at its 338th Session (June 2020).

The Committee also notes the observations of the German Confederation of Trade Unions (DGB) received on 21 November 2019. It further notes the additional observations of the DGB received on 10 November 2020. The Committee requests the Government to provide its comments with respect to the additional observations.

Articles 1(1)(a), 2 and 3 of the Convention. Non-discrimination, equality of opportunity and treatment irrespective of race, colour or national extraction. The Committee previously noted the persistent segregation and discrimination faced by minorities, including the Sinti, Roma and people of African descent, in education and employment and requested the Government to provide information on the measures taken to address them. The Committee notes the Government’s statement, in its report, that the situation of persons with a migration background has improved slightly, but remains difficult. The Government indicates that the difficult situation of persons with a migration background in the labour market is due to several causes, including the lack of German language skills, low education, little or outdated work experience, lack of knowledge about the German labour market and discrimination. The Committee welcomes the Government’s indication that, in the framework of the National Action Plan on Integration (NAP I), several programmes focusing on the labour market integration of persons with a migration background continue to be implemented. As a result, numerous large enterprises have already made diversity issues an essential part of their human resource development strategies and many small and medium-sized enterprises have recognized the benefits of diversity in their workforce. The Committee also welcomes the various initiatives taken to improve qualifications and skills for persons with a migration background, including the establishment of regional skilled worker networks. Furthermore, the Committee notes that the Government indicates that: (1) the Federal Government’s Integration Commissioner and the Federal Ministry for Economic Affairs and Energy are working together with various actors, within the “Diversity in the Economy” Forum, to support enterprises with intercultural openness and diversity management, the results of which will be presented at the 13th Integration Summit in early 2021; and (2) work was launched in May 2019 to develop the Integration in the Labour Market Forum, which focuses inter alia on the promotion of vocational training, protection against precarious and exploitative employment, the involvement of women migrants and women refugees in paid work and support for career promotion. The Committee also notes, more particularly, the implementation of the “Strong in the workplace – Mothers with a migration background get on board” (2015–2022) programme (funded by the European Social Fund), which aims to promote access to paid work, in particular through coaching, qualifications or language courses. To date, the federal programme has been able to reach over 10,000 participants. In that regard, the Committee notes that, in its observations, the DGB welcomes the programmes implemented by the Government to enhance the integration of persons with a migration background, but highlights that the gender perspective would need to be more strongly reflected.

With regard to the public service, the Committee notes the Government’s statement that it is aware of its responsibility as an employer and intends to increase the percentage of staff members with a migration background. In that regard, the Committee notes that, according to a study carried out in 2016, the average number of employees with a migration background in the federal administration was estimated at 14.8 per cent. The Government adds that additional employee surveys were conducted within the federal administration in 2019 in order to provide more in-depth data on equality of opportunity and diversity. Based on the results of these surveys, the Government indicates that it will develop new ways for further increasing the participation of people with a migration background and overcoming any obstacles to their access to the labour market.

With reference to education, the Committee welcomes the following initiatives to which the Government refers in its report: (1) the elaboration by the Federal Anti-Discrimination Agency (ADS) in 2018 of Comprehensive Practice Guidelines to combat discrimination against minorities in schools; and (2) the “fair@school” (Schools against Discrimination) competition, a joint initiative launched in collaboration with the ADS, for which the award-winning projects are intended to provide examples of how schools can work for diversity. The Committee however notes the Government’s statement that more measures are needed to address discrimination in education.

The Committee notes that, according to a micro-census conducted by the Federal Statistical Office, in 2017: (1) persons with a migration background represented 23.6 per cent of the total population (representing a 3.6 percentage points increase compared to 2015); (2) their employment rate was estimated at 65 per cent, compared to 77.3 per cent of persons of German origin; and (3) 6.6 per cent of them were not in paid employment, compared to 3.0 per cent of persons of German origin. In 2018, the average unemployment rate of persons with a migration background was estimated at 12.9 per cent, compared to 5.2 per cent of persons of German origin. The Committee further notes that, according to the 2019 Annual Report of the ADS, the number of people contacting the agency to report racial discrimination has more than doubled since 2015 and that 33 per cent of cases concerned racial discrimination, accounting for the highest proportion of all cases.

With regard specifically to the situation of the Sinti and Roma people, the Committee notes that the Government has not provided any information. It notes however that, in its 2019 report, the European Commission against Racism and Intolerance (ECRI) expressed concern at the lack of official statistical data on the number of Sinti and Roma and the fact that the latest qualitative study on their situation in the country dates back to 2011 and showed a high level of discrimination and segregation at school and low levels of education. The ECRI also highlighted as a good practice the nomination in a number of Länder of Sinti and Roma mediators to improve interaction and cooperation between Sinti and Roma pupils, their parents and schools (ECRI report on Germany, sixth monitoring cycle, 10 December 2019, paragraphs 95–101).

In light of the high number of persons with a minority or migration background living in the country and the persistent disparities in their access to education, training, employment and occupation, the Committee urges the Government to: (i) strengthen its efforts to prevent segregation and discrimination, in particular to effectively tackle racial stereotypes and prejudices, in the fields of education, training and employment, including with respect to the Sinti, Roma and people of African descent; (ii) provide information on the proactive measures taken to that end in the context of the NAP-I or otherwise as well as on the results of the measures and programmes already implemented, including the Programme “Strong in the workplace – Mothers with a migration background get on board”; and (iii) provide specific information on the results of the “Diversity in the Economy” Forum and the “Integration in the Labour Market” Forum, including any follow-up measures taken or envisaged in this framework.

General observation of 2018. With regard to the above issues, and in more general terms, the Committee would like to draw the Government’s attention to its general observation on discrimination based on race, colour and national extraction which was adopted in 2018. In the general observation, the Committee notes with concern that discriminatory attitudes and stereotypes based on the race, colour or national extraction of men and women workers continue to hinder their participation in education, vocational training programmes and access to a wider range of employment opportunities, resulting in persisting occupational segregation and lower remuneration received for work of equal value. Furthermore, the Committee considers that it is necessary to adopt a comprehensive and coordinated approach to tackling the obstacles and barriers faced by persons in employment and occupation because of their race, colour or national extraction, and to promote equality of opportunity and treatment for all. Such an approach should include the adoption of interlocking measures aimed at addressing gaps in education, training and skills, providing unbiased vocational guidance, recognizing and validating the qualifications obtained abroad, and valuing and recognizing traditional knowledge and skills that may be relevant both to accessing and advancing in employment and to engaging in an occupation. The Committee also recalls that, in order to be effective, these measures must include concrete steps, such as laws, policies, programmes, mechanisms and participatory processes, remedies designed to address prejudices and stereotypes and to promote mutual understanding and tolerance among all sections of the population.

The Committee draws the Government’s attention to its general observation of 2018 and requests the Government to provide information in response to the questions raised in that observation.

The Committee is raising other matters in a request addressed directly to the Government.

The Committee takes note of the Government’s report and the supplementary information provided in light of the decision adopted by the Governing Body at its 338th Session (June 2020).

The Committee also notes the observations of the German Confederation of Trade Unions (DGB) received on 21 November 2019. It further notes the additional observations of the DGB received on 10 November 2020. The Committee requests the Government to provide its comments with respect to the additional observations.

Article 1(1)(b) of the Convention. Additional grounds of discrimination. Disability The Committee recalls that it previously noted the adoption, in 2016, of the Act to strengthen the Participation and Self-Determination of Persons with Disabilities (Federal Act on Participation) and highlighted the substantial unemployment rate for persons with disabilities compared to the rest of the population. The Committee welcomes the Government’s indication, in its report, that several initiatives were implemented to raise awareness of employers about the potential of persons with disabilities. In this regard, the Government states in its supplementary information that, as a result of the Enterprise Network Inclusion Project, about 42,000 companies which do not employ a single person with severe disabilities, despite their obligation to do so, have been targeted as part of the joint initiative called “Recruitment counts – Employers Win” since April 2019. The Committee notes, from the statistical information provided by the Government, that the number of persons with severe disabilities employed in the open labour market, by employers under an obligation to do so, increased by 5.9 per cent between 2014 and 2017. However, 25.6 per cent of employers still do not employ a single person with severe disabilities, in spite of their obligation to do so. The Committee further notes the Government’s statement that the Federal Employment Agency and other rehabilitation providers, along with job centres and State integration offices, offer a wide spectrum of tailored support, vocational training and integration programmes. In that regard, it notes that the unemployment rate of persons with severe disabilities was estimated at 11.2 per cent in 2018 (compared to 6.5 per cent for the rest of the population). The Committee further notes the Government’s statement that, according to initial surveys carried out in the Länder, since 1st January 2018, about 1,800 employees have switched from segregated workshops for persons with disabilities to the open labour market, in particular as a result of the “Budget for Work” measure, a permanent wage subsidy. The number of persons with disabilities employed in segregated workshops also increased from 278,591 in 2014 to 289,842 in 2017. The Government states that of those eligible for employment in the workshops for persons with disabilities, 41 per cent are women and 59 per cent are men, a proportion which has remained unchanged since 2007. Welcoming the various steps taken to increase the participation of persons with disabilities in the labour market, the Committee asks the Government to continue to provide information on : (i) any measures, including gender responsive measures, taken to promote vocational training and employment of persons with disabilities and improve their access to the open labour market, and on the results achieved; as well as (ii) statistics on the employment rate of persons with disabilities, disaggregated by sex and work environment (segregated work environment or open labour market).

Article 1(2). Inherent requirements of the job. Legislation and judicial interpretation. The Committee recalls that section 9 of the General Act on Equal Treatment provides that : (1) a difference of treatment on the grounds of religion or belief of employees of a religious community shall not constitute discrimination where such ground constitutes “a justified occupational requirement for a particular religion or belief, having regard to the ethos of the religious community or organization in question and by reason of their right to self-determination or by the nature of the particular activity”; and (2) the prohibition of different treatment on the grounds of religion or belief shall be without prejudice to the right of the religious community to require individuals working for them to “act in good faith and with loyalty to the ethos of the organization”. The Committee previously noted that case law underlined the wide discretion that religious communities enjoy as to the duties of loyalty that can justify unequal treatment and that cases of discrimination based on religious belief, or sexual orientation and gender identity in employment of non-ecclesiastic positions in church-run institutions, such as schools and hospitals, were reported. The Committee also previously noted that, as a consequence of rulings of the Court of Justice of the European Union (Cases C-68/17 and C-414/16) as well as the Federal Labour Court (No. 8 AZR 501/14), section 9 of the General Act on Equal Treatment: (1) cannot be applied any longer as far as it refers to the right of self-determination of religious communities, and (2) must be interpreted restrictively as far as it refers to the nature of the activity concerned. The Committee notes the Government’s statement that both above-referred rulings represent the most recent case law under that provision, and national courts should comply with it in their decisions in similar cases. In that regard, the Committee notes the Government’s statement that two rulings of the Federal Labour Court (No. 8 AZR 562/16 and No. 2 AZR 746/14) and one ruling of the Hamm State Labour Court (Westphalia) (No. 18 Sa 639/18) issued between October 2018 and February 2019 have interpreted section 9 of the General Act on Equal Treatment in the light of the above-referred case-law. Finally, the Committee observes that, in its 2020 Country Report on Non-Discrimination, the European Commission identified as a specific issue the formulation of the justification of unequal treatment for religion or belief provided for in section 9 of the Act that depends on judicial interpretation (page 13). Recalling that exceptions relating to inherent requirements of a particular job under Article 1(2) of the Convention should be interpreted restrictively and on a case-by-case basis, the Committee asks the Government to continue to provide information on the application of section 9 of the General Act on Equal Treatment in practice, including on any court decision applying or interpreting this provision.

Articles 2 and 3. Equality of opportunity and treatment for men and women. Vertical and horizontal occupational segregation. The Committee recalls the adoption in 2015, of the Act on Equal Participation of Women and Men in Leadership Positions in the Public and Private Sectors, introducing a mandatory 30 per cent gender quota, to be realized by 2016, for supervisory boards of more than 100 companies that are publicly listed and subject to parity co-determination. Noting the persistent vertical and horizontal occupational segregation, it had previously requested the Government to provide information on its implementation and any measures taken to combat gender stereotypes in this regard. With respect to the measures taken to combat horizontal gender segregation, the Committee notes the Government’s indication that the Girls’ and Boys’ Days initiatives were continued to raise awareness of gender-stereotypical career choices, and that a new “Stereotypes-free” Campaign was launched to assist all stakeholders involved in the career choice process to support girls and boys in their career choice based on their strengths and inclinations rather than on gender stereotypes. The Government adds, in its supplementary information, that stereotype-free materials and programmes are available online and 260 partners have already undertaken to promote not gender-specific career or study guidance. The Committee also notes the Government’s indication that as a result of the coronavirus pandemic, the next specialized conference to be organized in this framework was postponed to March 2021. As regards the measures taken to combat vertical occupational gender segregation, the Committee notes that the Government refers to a number of initiatives undertaken by several stakeholders in order to raise awareness of gender stereotypes in the labour market and address them. The Government indicates that: (1) in the public sector, the share of women in all leadership positions throughout the entire public service slightly increased from 33 per cent in 2015 to 35 per cent in 2017, while women represent up to 52 per cent of workers in the public service; and (2) in the private sector, the share of women in the supervisory boards of companies that are subject to a fixed quota increased from 21 per cent in 2015 to 34 per cent in 2019, while the share of women on the supervisory boards of companies without a fixed quota is on average a mere 19.6 per cent. The Committee further notes that 70 per cent of companies that have set themselves targets for their boards have set a “zero target”. In this regard, the Committee welcomes the Government’s indication that a draft bill is currently being drawn up in order to amend the Act on Equal Participation of Women and Men in Leadership Positions in the Private and Public Sectors in order to improve its effectiveness, including by introducing an obligation for the private sector companies to provide the reasons why a target is set at “zero”, as well as sanctions for non-compliance with the reporting obligations in relation to targets. The Committee notes that, according to the DGB, further statutory requirements are needed to extend the 30 per cent gender quota to other enterprises and enhance women’s access to higher leadership positions, as well as to decision-making positions at all the levels of management, including for women working part-time. The DGB further considers that the public sector lags far behind the goal of equal treatment of men and women, as the higher the level in the hierarchy the fewer women are represented. In the DGB’s views, in light of the role of the public sector to set an example, the setting of the 30 per cent quota is too low. The Committee notes the Government’s indication that, as regards women’s representation within the federal police, men are still overrepresented and the achievement of equal numbers among the workforce appears unlikely, even in a foreseeable future. The Government states that in order to make the police force more attractive for women, the federal police has created family-friendly working conditions, such as flexible working hours, part-time work and alternative teleworking but the nature of the work which is “physically demanding and involves dangerous activities” remains an obstacle for women to becoming police officers. In this regard, the Committee notes that, in its observations, the DGB considers that the Government’s statements serve the gender stereotypes that continue to exist in society and directly contradicts programmes such as the “Stereotypes-free” initiative. The DGB further indicates that according to the federal police’s 2018 annual report, women make up around 15 per cent of police officers and it is not known whether any investigations have been undertaken to explain why the share of women in the federal police force continues to be lower than that in the Länder police forces, where women make up 28 per cent on average, according to the Federal Statistical Office. In the DGB’s views, not all employees can enjoy the same levels of flexibility around their family commitments, in practice, and the DGB highlights that research studies carried out since 2012 show that women in the police forces continue to suffer structural discrimination, particularly where they opt to work part-time for family reasons. The Committee asks the Government to strengthen its efforts to address horizontal and vertical occupational gender segregation both in the public and private sectors, in cooperation with employers’ and workers’ organizations. It also asks the Government to provide information on: (i) any measures taken or envisaged to strengthen the effectiveness of the impact of the Act on Equal Participation of Women and Men in Leadership Positions in the Public and Private Sectors; (ii) any other measures taken to enhance women’s access to occupations traditionally dominated by men, such as the police forces, and decision-making positions, in particular with respect to employment under the direct control of a national authority; and (iii) the content and impact of specific measures taken to combat gender stereotypes and prejudices regarding women’s career aspirations and capabilities.

Reconciliation of work and family responsibilities. The Committee previously noted the several measures taken by the Government to enhance better conciliation between work and family responsibilities and counteract the preconception that family responsibilities are primarily a matter for women. It however noted that prevailing stereotypes about the roles and responsibilities of women and men in the family and in society continue to impede progress in advancing gender equality and requested the Government to provide information on the measures taken to improve the reconciliation of work and family responsibilities for workers and to increase the number of workers with family responsibilities in the labour market. The Committee notes the Government’s statement that, since the introduction of the parental allowance in 2007, supported by the expansion in childcare services, the employment level among mothers with young children increased steadily and significantly. For mothers whose youngest child is between 1 and 2 years old, this rate increased from 34 per cent (in 2007) to 44 per cent (in 2017). The Government adds that a third of fathers of newborn children take parental leave during which they receive a parental allowance. In this regard, the Committee however notes that, in its observations, the DGB indicates that two thirds of fathers who take parental allowance continue to opt for the minimum period of two months and only 20 per cent opt for a genuine partner-based division of between three and nine months. The Committee further notes the Government’s indication that there has been an increase in the employment rate of women aged between 15 to 64 years, from 71.5 per cent in 2017, to 75.8 per cent in 2018. It however notes that, in its observations, the DGB again points out that there has been in reality a decrease in the full-time employment rate of women and an increase in their part-time employment rate. The DGB adds that part-time employment of less than 32 working hours a week has significantly increased during the last 25 years, representing a 16 per cent increase for women (compared to 9 per cent for men), and today almost one out of two women work part-time. The Committee further notes that the DGB welcomes : (1) the fact that part-time training, introduced in 2005, has enabled mothers and fathers without vocational training to combine parenthood and training and successfully complete a vocational course as a result; as well as (2) the amendments introduced in the Act on Part-Time and Fixed-Term Work, from 1 January 2019, which provide that anyone who wishes to temporarily reduce his or her working hours is able to rely on the legal right to temporary part-time work (“bridge” part-time work) without having to give specific reasons for this (section 9(a)). The Committee notes that, in its observations, the DGB highlights that this right only applies for companies with more than 45 employees, thus excluding most women, two thirds of whom work in small and medium-sized enterprises. In the DGB’s views, the scope of application of section 9(a) of the Act on Part-Time and Fixed-Term Work and the right for temporary part-time work should be extended. The Committee asks the Government to continue to provide information on : (i) the steps taken to improve the reconciliation of work and family responsibilities for workers, both in the public and private sectors; (ii) the measures adopted to increase the number of workers with family responsibilities in the labour market, in particular working mothers, and the impact thereof; and (iii) awareness-raising activities undertaken to address stereotyped assumptions that the main responsibility for family care lies with women, and on their outcomes.

Depersonalized job application process. The Committee previously noted that after the Federal Anti-Discrimination Agency’s (ADS) model project ended in 2012, subsequent pilot projects on anonymized job applications were introduced, with the support of the ADS, in private enterprises and public administration in various Länder, as well as within associations and foundations, thus giving women and applicants with a migration background a better chance of being invited to an interview. It requested the Government to continue to provide information on the development of such pilot projects and their impact, as well as statistical information on the applicants selected through these processes. The Committee notes the Government’s indication that the ADS provided employers with information and guidelines on diversity within the workplace and discrimination-free personnel policy. It however notes that no information was provided by the Government regarding its previous requests. The Committee therefore asks the Government once again to provide: (i) specific information on the development of anonymized job application pilot projects in private enterprises and public administration in various Länder; (ii) any assessment made of their impact, including by providing extracts of relevant studies or reports; and (iii) statistical information, disaggregated by sex and national extraction, on the applicants selected through these processes.

Enforcement. Equality body. The Committee notes the Government’s statement that the ADS continued to raise awareness of different forms of discrimination and provided advice to people about their rights in case of discrimination. Concerning the measures envisaged to expand the mandate of the ADS, the Committee notes the Government’s indication that, as a result of an evaluation of the General Act on Equal Treatment commissioned in 2016 by the ADS, comprehensive recommendations were made on the need to revise the Act, in particular by expanding the powers of the ADS. The Government adds that it is currently reviewing these recommendations to examine whether any measures should be implemented in this regard. The Committee notes that, in its 2019 report, the European Commission against Racism and Intolerance (ECRI) highlights that the ADS still lacks sufficient authority to file or support court cases, launch investigations or impose sanctions in response to discrimination claims. The ECRI further states that it is aware of considerable resistance to strengthening equality bodies and anti-discrimination legislation (ECRI Report, sixth monitoring cycle, 10 December 2019, page 7 and paragraphs 2 and 8). The Committee asks the Government to provide information on the activities of the Federal Anti-Discrimination Agency in relation to employment and occupation, as well as on any measures taken or envisaged to consider expanding its mandate to include the investigation and filing of complaints in court, including as a follow-up to the evaluation undertaken in 2016. In the absence of information in the Government’s report on this point, the Committee asks once again the Government to provide information on any cases of discrimination in employment and occupation dealt with by labour inspectors, the courts or any other competent authorities, as well as the sanctions imposed.

The Committee takes note of the supplementary information provided by the Government in light of the decision adopted by the Governing Body at its 338th Session (June 2020). The Committee proceeded with the examination of the application of the Convention on the basis of the supplementary information received from the Government this year, as well as on the basis of the information at its disposal in 2019.

The Committee notes the Confederation of German Employers’ Associations (BDA) received on 28 August 2018, as well as the observations of the International Organisation of Employers (IOE) received on 31 August 2018. The Committee also notes the observations of the Food, Beverages and Catering Union (NGG) received on 21 November 2019. The Government is requested to provide its comments in this respect.

Article 3 of the Convention. Adoption of a national policy. The Government indicates that, as of 1 January 2020, the general statutory minimum wage was fixed at € 9.35 per hour. It adds that the Minimum Wage Act imposes a number of obligations on employers, including documentation and reporting requirements, obligations which apply to the hospitality and hotel industry. The Government indicates that application of the general statutory minimum wage to the hospitality and hotel industry may contribute to improvements in working conditions for workers in this sector. The Committee notes that, according to the third Report of the Minimum Wage Commission, a particularly high proportion of jobs in the hotel and restaurant industry paid wages of less than € 8.50 an hour before the minimum wage was introduced. The Government indicates that there was a clear drop in the number of jobs paying in the minimum wage range between 2014 and 2018 (from 51.5 to 16.2 per cent in the restaurant industry and from 32.6 to 8.3 per cent in the hotel industry). In its supplementary information, the Government indicates that the amendments introduced by the Act of 11 December 2018 to the Act on Part-time and Temporary Work of 21 December 2000 improved working conditions in the sector. The Committee notes that the amendments establish a right to part-time work for a limited period for workers who have already been in their current employment for more than six months and who work in businesses that generally have more than 45 employees. In addition, the amendments facilitate the ability of those already working part-time on an open-ended basis to move to a vacant job with increased working hours by shifting the burden to the employer of establishing that the worker is not suitable for the vacant position. In its observations, with which the IOE concurs, the BDA expresses the view that the labour law, which applies to employees in the catering sector, fully meets the requirements of the Convention. The Committee draws the Government’s attention to the importance of establishing a national policy whose objective is the improvement of the working conditions of workers employed in hotels and restaurants. It notes that the Government does not provide information in respect of the existence of a national policy as required by the Convention. The Committee therefore reiterates its request that the Government communicate concrete updated information on the measures taken to develop and adopt a national policy designed to improve the working conditions of those employed in hotels, restaurants and similar establishments covered by the Convention.

Article 4. Hours of work. In its 2014 direct request, the Committee noted that, pursuant to section 7 of the Working Hours Act, the parties to collective agreements have, under certain circumstances, the option of agreeing terms that deviate from the terms of the Act. It requested the Government to provide information on the practical application of these provisions to workers employed in hotels and restaurants, including information on pay for overtime hours and the number of additional hours performed on average in the sector. In its report, the Government indicates that an option of particular relevance to the sector is the possibility of extending for up to one year – by collective agreement – the period of time within which compensatory time off must be given for overtime hours worked. The Government indicates that it has no data on the number of enterprises in which this option is applied. The Committee notes the data provided from the Institute for Employment Research, indicating that, in the fourth quarter of 2019, the average number of hours worked per worker in the hospitality industry totalled about 286, with an overall total of about 475 million hours worked by all workers in the sector. During the same period, 9.2 hours of overtime (4.4 hours of paid overtime and 4.8 hours of unpaid overtime) were worked per worker on average in the hospitality industry, with a total of 15.3 million overtime hours worked by all workers in the sector. The Committee notes that the proportion of paid hours of overtime to total hours of overtime was less than half during the relevant period: 48 per cent. In addition, the Committee notes the Government’s indication that overtime hours are compensated at the worker’s normal hourly wage or in paid time off. In its supplementary information, the Government indicates that the amended Act on Part-Time and Temporary Work is intended to give greater planning and income security to workers who do work on an on-call basis, in accordance with article 4(4) of the Convention, by restricting the amount of additional work that may be awarded via an on-call arrangement. Pursuant to the amendments, employers may, in the context of on-call work, allocate only up to an additional 25 per cent of weekly working hours if a minimum number of working hours has been agreed in respect of the duration of the weekly working hours. Where a maximum number of working hours has been agreed in respect of the duration of the corresponding weekly working hours, employers may only allocate up to 20 per cent fewer weekly working hours in this manner. The Committee notes that, in the absence of a fixed number of working hours per week under on-call working arrangements, there is a presumption that 20 working hours have been agreed. The Committee requests the Government to continue to provide updated statistical information on compensation for overtime hours worked in establishments covered under the Convention, as well as on the number of additional hours performed on average. It further requests the Government to provide information on measures taken to ensure that overtime hours performed by workers in the sector are compensated by time off with pay by a higher rate or rates of remuneration for the overtime worked, or by a higher rate of remuneration, as determined in accordance with national law and practice, and after consultations between the employer and the workers concerned, or their representative, as indicated by the Working Conditions (Hotels and Restaurants) Recommendation, 1991 (No. 179), paragraph 7(3).

Part V of the report form. Application in practice. In its observations, the NGG expresses concern regarding the extent of illegal practices -including breaches of the minimum wage through illegal employment- in the hospitality sector. The NGG indicates that, in 2018, the customs unit checked 9,239 businesses in the hospitality industry for undeclared work and illegal employment, uncovering breaches of the minimum wage regulations in one out of every ten hotels or restaurants. According to the NGG, 915 non-compliance procedures and 373 prosecutions were brought in the course of the 1,527 priority checks that customs carried out in 2019 in the hotel and restaurant industry. The Committee notes that the NGG calls for intensive minimum-wage checks and points to the need for frequent and prompt interventions by the Tax Enforcement Unit for Undeclared Work. It also stresses the importance of maintaining accurate records of working hours and strict observance of the minimum wage documentation obligations. The Committee requests the Government to provide its comments in this respect and to provide information on the manner in which the Convention is applied, and particularly statistics on the number of workers and establishments covered by the measures giving effect to the Convention, extracts from the reports of the inspection services indicating the number of inspections carried out and the contraventions reported, recent studies on conditions of employment and working conditions in the sector, challenges encountered in the application of the Convention, such as high proportion of undeclared workers in the sector, their consequences and measures taken to address these.

COVID-19 pandemic. The Committee notes that the accommodation and food services sectors have been among the “hard-hit” sectors following the outbreak of the COVID-19 pandemic and the measures adopted by the Governments to contain it. In the context of the global COVID-19 pandemic, the Committee recalls the guidance provided by international labour standards. In that regard, the Committee wishes to draw the Government’s attention to the Employment and Decent Work for Peace and Resilience Recommendation, 2017 (No. 205), which provides guidelines for the formulation and implementation of effective responses to the profound socio-economic repercussions of the pandemic. The Committee invites the Government to provide up-to-date information in its next report on the impact of the COVID-19 pandemic on the application of the provisions of the Convention.

The Committee notes the supplementary information provided by the Government in light of the decision adopted by the Governing Body at its 338th session (June 2020). The Committee therefore examines the application of the Convention on the basis of the supplementary information received from the Government this year, as well as on the basis of the information at its disposal in 2018 and 2019.

The Committee notes the observations of the Confederation of German Employers' Associations (BDA), received on 28 August 2018, as well as those of the International Organisation of Employers (IOE), received on 31 August 2018, in which the IOE endorses the observations of the BDA. The Committee requests the Government to provide its comments in this respect.

Article 1. Definitions. In its previous comments, noting the Government's indication that German law contains no special definition of domestic workers, the Committee requested the Government to indicate any measures taken or envisaged to incorporate the definitions of domestic work and domestic worker in national legislation or collective agreements. In its response, the Government refers to its first report, indicating that domestic workers are workers within the meaning of German employment law. The Committee once again notes that, given the specific characteristics of domestic work, specific attention should be given to providing a definition of domestic worker and domestic work in relevant national legal instruments. The Committee invites the Government to consider incorporating definitions of domestic work and domestic worker into national legislation or collective agreements that take into account the specific characteristics of domestic work and domestic worker.

Article 2. Exclusions. In its 2016 direct request, the Committee noted that section 18(1) (iii) of the Working Hours Act excludes caregivers from the scope of its application. The Committee requested the Government to provide further information explaining in detail the reasons for this exclusion, as well as information on prior consultations held with the most representative organisations of employers and workers in this context. The Government explains that in providing for this exemption, which defines caregivers as “persons living in a common household with those for whom they are responsible for raising, looking after or caring”, the legislator had in mind a particular category of persons: “relief parents” living in SOS Children's Villages. These persons live in the same household as the children entrusted to their care. The Government further indicates that the exemption applies only under the particular terms of section 18 (1) (iii) of the Act, and that the circumstances of each individual case must be taken into account in making this determination. In this context, the Committee notes that the Federal Administrative Court has ruled that the Working Hours Act should also apply to house parents who work in residential groups that provide “alternating care” for children and young persons (Judgment of 8 May 2019 - BVerwG 8 C 3.18). It further notes the indication of the Government that the exclusion stipulated in section 18 (1) (iii) of the Working Hours Act does not apply to relief parents for SOS Children's Villages, foster parents, or to comparable workers, including “live-in-nurses and caregivers”. With respect to consultation, the Government indicates that the social partners were provided with the opportunity to comment on the draft Contract Act, as well as on the draft of the memorandum on ratification of the Convention. The Committee notes that the Government does not specifically indicate, however, whether the social partners were consulted with regard to the application of any exclusion under Article 2. The Committee requests the Government to indicate in its next report measures taken or contemplated with a view to amending section 18(1) (iii) of the Working Hours Act, so as to ensure that categories of workers listed as “workers who share a common household with persons entrusted to them and who bring them up, nurse them or care for them” are ensured the protections afforded by the Convention.

Article 3(1), (2)(a) and (3). Freedom of association and collective bargaining. The Government reiterates that domestic workers' right to freedom of association and collective bargaining is protected under section 9 (3) of the Basic Law (the Constitution), as is the case with other workers generally. The Committee once again recalls that the specific characteristics of domestic work, which often involve triangular employment relationships, a high degree of dependence on the employer, particularly in the case of migrant domestic workers, and the frequent isolation of domestic workers in their workplaces, are all factors that make it difficult for domestic workers to form and join workers' organisations and to collectively bargain. The Committee therefore requests that the Government provide information on measures taken or envisaged to ensure the effective exercise of domestic workers' freedom of association and collective bargaining rights in practice, including measures to inform domestic workers and their employers of their rights and obligations in this context.

Article 3(2)(c) and Article 4. Child labour. Minimum age. The Committee requested the Government to indicate the nature of the exceptions to the protections afforded to children who work and the manner in which they are applied in the context of domestic work. The Government was also requested to describe the measures taken to ensure that work performed by domestic workers under the age of 18 does not interfere with their opportunities for further education and training. The Government reiterates that section 5(1) of the Youth Employment Protection Act (Jugendarbeitsschutzgesetz) prohibits the employment of children and young people under fourteen who are required to attend mandatory full-time education. This prohibition, however, does not apply to the employment of children over thirteen, with the agreement of the primary carers, provided that the work is not onerous and is suitable for children. The Government further indicates that the work is not considered onerous if, given its nature and the particular conditions under which it is carried out, it does not adversely affect children's safety, health and development, their school attendance, their involvement in preparatory programmes for the choice of a career or vocational training, or their ability to successfully follow classes. The Committee requests the Government to provide information on the measures taken to ensure that domestic work performed by children over thirteen and young people under the age of eighteen does not interfere with their opportunities for further education and training. The Government is also requested to provide information on the number of inspections conducted in households where young persons are engaged in domestic work, the number of offences reported and the penalties imposed.

Article 3(2)(d). Elimination of discrimination. The Committee previously requested the Government to indicate the manner in which the principle of equality of opportunity and treatment is ensured for both men and women in domestic work, particularly in respect of terms and conditions of employment, including remuneration. The Government indicates that the Minimum Wage Act applies to all national and migrant workers, including domestic workers. It further indicates that section 3(1) of the Pay Transparency Act, as well as paragraphs (1) and (7) of section 6 in conjunction with section 2(1)(2) and section 8(2) of the General Equal Treatment Act, prohibit gender-based pay discrimination. These provisions are applicable to all workers, including domestic workers. The Transparency in Wage Structures Act (Entgelttransparenzgesetz), which came into force on 6 July 2017, requires application of the principle of equal pay for women and men for equal or equivalent work to all workers. The Act also introduces an individual right to information for workers. These provisions benefit domestic workers, as they apply to all workers in sectors typically made up of small businesses. Taking into consideration the specific characteristics of domestic work, the Committee requests the Government to provide detailed information on the measures adopted or envisaged to raise the awareness of domestic workers concerning their right to equality of opportunity and treatment and to guarantee in practice the right of domestic workers to equal remuneration for women and men for work of equal value.

Article 5. Effective protection against all forms of abuse, harassment and violence. In its 2016 direct request, the Committee invited the Government to indicate the measures taken to give effect to this Article of the Convention, provide information on the impact of such measures, and on the manner in which it is ensured that domestic workers are informed of the protections available to them. The Government indicates that in the event that they are subjected to any form of violence, including psychological violence, the women affected, persons around them and specialists may phone the nationwide “Violence against Women” helpline set up by the Federal Government. It is easily accessible, anonymous and available free of charge 365 days a year at any time of the day or night. Expert advice is provided over the telephone in 18 languages, by e-mail or online chat and via sign language interpreters. Upon request, female victims of violence can be placed in local support and counselling centres. The Government does not provide information regarding the manner in which male domestic workers are protected against workplace abuse, harassment and violence. The Committee requests the Government to provide information on the manner in which this Article is given effect in the case of both female and male domestic workers, as well as on the manner in which it is ensured that domestic workers are informed of the protection available to them against all forms of abuse, harassment and violence in the workplace. It further requests the Government to provide detailed information on the nature and number of phone calls or complaints received reporting harassment, abuse and violence in the context of domestic work, and the assistance provided.

Article 7. Information on terms and conditions of employment. In response to the Committee's 2016 comments, the Government indicates that domestic workers are covered by the same provisions of labour and social security law as all other workers. In addition, fair terms of employment and decent working conditions guaranteed under national legislation apply to all workers, including domestic workers. The Government further indicates that the Employment Conditions Documentation Act (Nachweisgesetz) requires employers to draw up, sign and give the essential contractual terms to the worker in writing, including arrangements governing repatriation, no later than one month after the agreed commencement of employment. Examples of the essential contractual terms about which the employer is obliged to inform the worker in writing are listed in the Employment Conditions Documentation Act. The Committee notes that the Federal Foreign Office organises information events annually for domestic workers in diplomatic households. Information on rights and obligations is provided at these events, and domestic workers working in diplomatic households have an opportunity to exchange experiences. In addition, the embassies are sent a circular requesting them to allow their domestic workers to participate. The Committee draws the Government's attention to the fact that Article 7 of the Convention applies to all domestic workers and not only to domestic workers in diplomatic households. It, therefore, invites the Government to continue to provide detailed and up-to-date information concerning the measures taken or envisaged to ensure that all domestic workers, including regular migrant domestic workers, are duly informed of their conditions of employment as laid down in the Convention.

Article 8(1) and (3). Migrant domestic workers. The Committee previously requested that Government indicate the manner in which it is ensured that migrant domestic workers recruited in one country for domestic work in another receive a written job offer or contract of employment prior to crossing the border that is enforceable in the country in which the work is to be performed, which sets out the terms and conditions of employment in accordance with Article 7 of the Convention. The Government indicates that third-country nationals may work in Germany either on a self-employed basis or in the formal employment, under the same terms and conditions as German workers, if they hold a residence permit. The prerequisite for the issuance of a residence permit for the purpose of employment is a specific offer of employment. While the employment is ongoing, the employer is also required to provide information about salary, working hours and other terms of employment to the Federal Employment Agency (BA) to enable it to monitor the employment situation of foreign workers. Information on the minimum working conditions (minimum wage level and deductions) to which they are entitled is available to workers in German, English and French on the webpage of the customs authorities. In addition, further special provisions regulate the employment of domestic workers in diplomatic households and those who are working in Germany on a temporary basis for their employer or on behalf of a company based abroad (section 13 of the Employment Ordinance). The Committee requests the Government to provide information on the manner in which it ensures adequate protection for and prevents abuses of self-employed migrant domestic workers active in its territory.

Article 8(4). Repatriation. The Committee requested the Government to indicate the laws, regulations or other measures that specify the conditions under which migrant domestic workers are entitled to repatriation on the expiry or termination of their contract. The Government indicates that under section 26(1) of the BeschV, the residence permit granted to foreign domestic workers is limited to the term of the employment relationship (section 7(2) of the Residence Act). Upon expiry of the residence permit, the foreign workers are required to leave Germany, unless they secure alternative employment, for which a further residence permit may be granted. The Government further indicates that in case of early termination of employment the immigration authority has the discretion to set the term of the residence permit retrospectively (second sentence of section 7(2) of the Residence Act) while taking into account all the circumstances of the individual case. The Committee takes note of the information supplied by the Government, which responds to the points raised previously.

Article 9 and 10. Measures ensuring appropriate rest and leave. Keeping possession of travel and identity documents. With respect to the application of these Articles, the Government indicates that rest and leave requirements are met only where workers are released from their work duties for the purpose of rest, at which point they can dispose of their time as they please. It further indicates that, under the third sentence of section1(1) of the German Act on Identity Cards and Electronic Identification (Personalausweisgesetz), identity cardholders cannot be required to deposit their identity cards or otherwise surrender possession of them. The Committee notes that the general property protection provisions of the Civil Code protect the holder of the passport or identity card against these being seized by third parties. The Committee takes note of the information supplied by the Government, which responds to the points raised previously.

Article 11 and Article 12(2). Minimum Wage. Payment in kind. The Committee requested the Government to indicate the measures taken to give effect to these Articles, thereby ensuring that all male and female domestic workers enjoy minimum wage protections. The Committee further requested the Government to indicate whether limitations are imposed on the payment in kind and their applicability to domestic workers. The Government reiterates that the Minimum Wage Act applies without distinction to all workers, including domestic workers. The Committee notes that information on minimum working conditions (minimum wage and its calculation) is available in German, English and French on the customs administration's website (information also includes cases in which per diems are not permitted to count towards the minimum wage). With regard to the payment of wages, the Government indicates that under the Minimum Wage Act, the minimum wage is, on principle, only payable in money and any deduction for payments in kind is, as a matter of principle, out of the question. However, the Government further indicates that section 197(2) of the Trade Ordinance and section 107(2) of the Industrial Code ensure that, in case of an agreement, the portion of the payment in kind does not exceed the attachable portion of wages. That means that the employer must always pay workers the non-attachable portion of their wages in cash. Only the balance of the wages may be paid in kind. The Committee notes that the non-attachable amount has since 1 July 2019 been EUR 1,179.99 net a month. The Committee takes note of the information supplied by the Government, which responds to the points raised previously.

Articles 13 and 14. Effective measures to ensure occupational safety and health. Effective access to social security. The Government reports that domestic workers are protected in Germany against work-related accidents and occupational illnesses under sections 26 and onwards of the Social Code, Book VII. These provisions require the statutory occupational accident insurance provider to use all appropriate resources to reinstate the health and fitness of the domestic workers and to pay financial compensation to them or their surviving dependents. The Committee notes that where the employer breaches his duty to undertake protective measures under section 618 of the German Civil Code, the worker is entitled to refuse to work without losing remuneration and may bring charges against the employer. With regard to social security protection, the Government reiterates that domestic workers, like other comparable workers, are protected through health, pension, accident, nursing and unemployment insurance (employment promotion). It further indicates that domestic workers benefit from the same regulations concerning entitlement to maternity pay, parental allowances and parental leave as other workers. The Committee takes note of detailed information provided by the Government with regard to the social and health insurance required for domestic workers in low-paid jobs (“mini-jobs” paying up to €450 per month). The Committee requests the Government to provide up-to-date statistics on the number of domestic workers, including those in low-paid jobs (“mini-jobs”) registered with the general social protection scheme, disaggregated by age and sex.

Article 15. Conditions for the operation of private employment agencies. Fee charging and cross-border mediation. The Committee requested the Government to provide information on the conditions governing the operation of private employment agencies and to indicate the measures taken to ensure that fees charged by private employment agencies are not deducted from the remuneration of domestic workers and that adequate machinery and procedures exist for the investigation of complaints. The Committee notes from the information provided by the Government that the provisions of Book III of the Social Security Code (SGB III) regulate the registration, accreditation, activities and remuneration of private employment agencies in Germany. It further notes that the existence of an employment contract is a prerequisite for placements of foreign domestic workers into employment by private agencies. The Government indicates that private agencies must be independent of the parties and cannot be linked to the worker or the employer either legally, commercially or personally. The Government further indicates that sections 296 and 297 of the SGB III, stipulate, among other things, that employment contracts with private agencies must be in writing. With regard to measures taken or envisaged to prevent abuses and fraudulent practices in relation to domestic workers recruited from abroad, the Government indicates that under section 15c of the Employment Ordinance (BeschV), a residence permit for full-time employment subject to compulsory insurance may be granted with a “Vorrangprüfung”, a prioritisation test, for a term of up to three years for domestic work and essential daily nursing assistance in households with persons in need of nursing care (SGB XI). This is done in cases where the persons concerned have been placed into work under an agreement between the Federal Employment Agency and the labour administration organisation of the country of origin covering the process and the selection of workers. In such cases, domestic workers cannot be placed into work via private employment agencies and are protected against abuse on the basis of bilateral agreements. The Government further indicates that, given the existing protection measures, there is no need for special bilateral agreements between the Federal Employment Agency and the labour administration organisations of third countries. The Government adds that workers from the EU Member States working in Germany are given equal treatment with German workers as far as employment, remuneration and other working conditions are concerned. The Committee notes that the Government does not provide information regarding the measures taken to ensure that adequate machinery and procedures exist for the investigation of complaints, alleged abuses and fraudulent practices concerning the activities of private employment agencies in relation to domestic workers. The Committee requests the Government to provide information on measures taken or envisaged to ensure that private employment agencies ensure the equal treatment of all migrant domestic workers. It further requests the Government to indicate the measures taken to ensure that adequate machinery and procedures exist for the investigation of complaints, alleged abuses and fraudulent practices of private employment agencies in relation to domestic workers.

Articles 16 and 17 (1). Judicial decisions and complaints mechanisms. The Government has not provided information in its report on the establishment of effective and accessible complaint mechanisms to ensure compliance with national laws and regulations for the protection of domestic workers. Recalling the particular vulnerability of domestic workers, the Committee requests the Government to indicate the measures adopted or envisaged to establish effective and accessible complaint mechanisms and means of ensuring compliance with national laws and regulations for the protection of domestic workers, and particularly for migrant domestic workers.

Article 17(2) and (3). Labour inspection and penalties. The Committee notes the information provided by the Government on preventing and combating human trafficking. It further notes that under the Act against illegal Employment and Misuse of Social Payments (11 July 2019), the Customs Authority's Tax Enforcement Unit for Undeclared Work has now the power to review exploitative terms of employment and conduct investigations in the area of self-employment even in the absence of a specific work location. The Committee requests the Government to continue providing information on the specific measures adopted or envisaged in relation to labour inspection with due regard to the special characteristics of domestic work, as well as information on the number of inspections in the sector, the number of violations detected and penalties imposed.

Article 18. Consultations. The Committee requests the Government to provide information on any consultation held with the most representative workers' and employers' organisations, as set out in Articles 2, 14 and 18 of the Convention.

Judicial decisions. Part IV of the report form. The Committee takes note of the Court decisions referenced in the Government's reports in relation to the application of the Convention. It takes particular note of the decision of the Düsseldorf State Labour Court, of 10 May 2016 (Case No. 14 Sa 82/16), holding that failure to apply the German Protection Against Dismissal Act (Kündigungsschutzgesetz) to domestic workers does not infringe the Convention, as the Convention does not provide protection against dismissal. The Committee requests the Government to continue to provide information on decisions rendered by courts of law or other dispute resolution mechanisms involving questions of principle relating to the application of the Convention.

Application of the Convention. Part V of the report form. The Government indicates that the true extent of illegal employment in domestic households is difficult to estimate. While according to information from the Mini-Job Centre, the number of commercial “mini-jobs” in Germany has remained constant for years, the number of people in “mini-jobs” working for private households who are receiving special support has more than tripled, from about 84,000 in 2004 to a yearly average in 2018 of some 286,000 persons. The Government also indicates that to strengthen the legal use of domestic services in “mini-jobs” and the household vetting process, the Mini-Job Centre launched a “Domestic Jobs Exchange” in 2014. The web-based service platform offers users free job matching services, which includes domestic work. The Committee notes that by the end of June 2019 there were already around 74,000 registered users and about five million hits on its website. The Committee requests the Government to continue to provide general indications on the manner in which the Convention is applied in Germany.

Comments adopted by the CEACR: Germany

ADOPTED_BY_THE_CEACR_IN 2021

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Issues specifically concerning labour inspection in agriculture

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ADOPTED_BY_THE_CEACR_IN 2020

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Comments adopted by the CEACR: Germany

Display the list by:

ADOPTED_BY_THE_CEACR_IN 2021

C081 - CMNT_TITLE

Issues specifically concerning labour inspection in agriculture

C087 - CMNT_TITLE

C098 - CMNT_TITLE

C122 - CMNT_TITLE

C135 - CMNT_TITLE

ADOPTED_BY_THE_CEACR_IN 2020

C100 - CMNT_TITLE

C100 - CMNT_TITLE

C111 - CMNT_TITLE

C111 - CMNT_TITLE

C172 - CMNT_TITLE

C189 - CMNT_TITLE