Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

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

The Committee takes note of the information provided in the Government’s report. It also notes the comments made by the German Confederation of Trade Unions (DGB) and the German Employers’ Associations (BDA), and the Government’s detailed comments thereon.

Articles 3 and 10 of the Convention. Right of public servants’ organizations to formulate their programmes in defence of the occupational interests of their members including by recourse to collective action and strike. The Committee has been referring for a number of years to the importance of taking the necessary measures so as not to sanction public servants ("Beamte" including postal workers, railway employees and teachers) who are not exercising authority in the name of the State for taking collective action, which includes recourse to strike. The Committee notes from the Government’s report that there is no change in the law which continues to lay down the rights and duties of civil servants ("Beamte") in terms of their status rather than their function, and that the sanctioning of civil servants who have violated a continuing ban on strikes cannot be ruled out for the future as a result of a Federal Constitutional Court ruling in 2002 to the effect that disciplinary law applied to civil servants working in the public telecommunications company. On this last point, the Committee would point out that it has always considered that telecommunications may be considered an essential service in the strict sense of the term and that workers in that sector may thus be restricted in their right to exercise collective action, as may be the case for public servants exercising authority in the name of the State.

The Committee recalls, however, that its previous comments have referred to strike restrictions for public servants, including postal workers, railway employees, teachers, etc. The Committee considers that this restriction placed on the right to strike of public servants goes significantly beyond the exceptions permitted in respect of essential services and public servants exercising authority in the name of the State. In order to have a fuller understanding of the impact of the restriction on the right to strike for "Beamte", the Committee requests the Government to furnish additional information in its next report on the number of civil servants considered to be "Beamte" and the types of activities carried out by them, as well as to communicate any available information on the evolution in the number of workers and the sectors of activities covered within the scope of "Beamte" due to privatization.

Emphasizing that organizations of teachers, postal workers and railway employees, among others, should have the right to organize their programmes and activities, including calls for industrial action, free from interference by the public authorities, the Committee once again requests the Government to indicate in its next report the measures envisaged to open the way to the full implementation of Articles 3 and 10 of the Convention by ensuring that public servants who do not exercise authority in the name of the State and who cannot be considered as providing an essential service in the strict sense of the term, will not be sanctioned for exercising legitimate trade union activities, including industrial action if they so wish, in defence of their economic, social and occupational interests. The Committee hopes that the Government will make every effort to find constructive solutions in the very near future to this longstanding issue.