Observation (CEACR) - adopted 1995, published 82nd ILC session (1995)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Germany (Ratification: 1957)

The Committee notes the information contained in the Government's report and the comments dated 8 February 1994 made by the German Confederation of Trade Unions (DGB). It also notes the statements by the Government representative to the Conference Committee in June 1994 and the ensuing discussion.

1. Access to the workplace for trade union officials who do not belong to the enterprise

The Government, referring to its previous comments and reports, assures that it fully complies with the requirements of the Convention in this respect. On the question of guaranteeing trade union officials, and even those who do not belong to an enterprise, access to the workplace if they consider it necessary, the Government explains in detail that the Federal Labour Court, in a ruling handed down on 25 March 1992, has ruled that a trade union is represented in an enterprise if at least one worker in the enterprise is a member of the union and that a simple statement, certified by a notary, which does not mention the name of the member of the trade union, is sufficient to establish that the trade union is represented in the enterprise. In the opinion of the DGB, the matter of the right of access of trade union representatives who do not belong to the enterprise has not been settled. The DGB states that this right is often contested in practice, for example in the postal services (POSTDIENST). In this respect, the Government stated previously that 92 per cent of postal workers are members of three trade unions, which are already represented in these services.

The Committee notes with interest the ruling by the Federal Labour Court dated 25 March 1992 and notes that as a result a trade union is represented in an enterprise, without any restriction, when a single worker is a member of the union, the name of the worker not having to be divulged. The Committee considers, in the light of the available information, and particularly the recent decision by the Federal Labour Court previously referred to, that the provisions of the Convention no longer appear to be in contradiction with the Convention and hopes that measures will be taken to ensure that the practice followed is in accordance with the requirements of the Convention.

2. Requisitioning of postal service employees (Beamte) to replace striking state employees and manual workers (Angestelle) in the postal services

The Committee notes with satisfaction the Government's statement in its report that it has drawn its conclusions from ruling No. 88.103 of the Federal Constitutional Court, handed down on 2 March 1993, and that while there is no law to justify its intervention, no federal employee will be requisitioned in future to replace workers who are participating in a legal strike. The Committee also notes the assurances given by the Government that other employers, and particularly the States (Länder) and the municipal authorities, will also take this decision into account.

3. Denial of the right to strike in the public service

The Committee notes the information supplied by the Government to the effect that the question of restricting the right to strike of employees of the railways and postal services is unlikely to remain an issue in practice, since privatization is envisaged. However, the employees affected will continue to enjoy their status as public employees in the privatized enterprises. In this context, the question arises of reducing the number of public employees to include only public servants exercising authority in the name of the State.

The Committee once again states that although it has always admitted that the right to strike may be restricted or prohibited in the public service, such a prohibition would become meaningless if the legislation defined the public service too broadly. Although the Committee cannot overlook the special characteristics and legal and social traditions of each country, it must, however, endeavour to establish fairly uniform criteria in order to examine the compatibility of legislation with the provisions of the Convention. In these conditions, the prohibition of the right to strike should not be imposed on public servants who do not exercise authority in the name of the State (see 1994 General Survey on Freedom of Association and Collective Bargaining, paragraph 158).

The Committee therefore requests the Government to take the necessary measures to ensure that public servants who do not exercise authority in the name of the State and their organizations are not denied the right to organize their activities and formulate their programmes in defence of their economic, social and occupational interests by means which include strikes, if they so wish, in accordance with the principles set out in Articles 3 and 10 of the Convention. The Committee requests the Government to indicate any measure taken in this respect in its next report.