Observation (CEACR) - adoptée 2007, publiée 97ème session CIT (2008)

Convention (n° 98) sur le droit d'organisation et de négociation collective, 1949 - Allemagne (Ratification: 1956)

The Committee takes note of the Government’s report and its observations on the comments of the International Trade Union Confederation (ITUC).

The Committee’s previous comments concerned the procedures through which the conditions of employment of civil servants, including teachers, are determined. The Committee had noted in 2005 that a major reform of the civil service was under way and that consultations and dialogue with public servants’ trade unions had been an important element in the context of the preparation of draft legislation on the public service. It further notes from the Government’s reply of 2006 to the comments of the ITUC that the conditions of employment of civil servants, including teachers, are, according to constitutional law principles, laid down in national laws and that, consequently, there is no provision for collective bargaining, even for individual categories of civil servants. The Government underlines that section 94 of the Federal Public Service Act (Bundesbeamtengesetz) and the relevant Länder legislation provides for the participation of public servants’ unions in drawing up the regulations applicable to civil servants which constitute more than mere consultation but less than binding co-determination. The Government stresses that teachers are subject to the jurisdiction of the individual Länder administrations and that the latter decide whether to hire teaching staff as civil servants or as normal employees who have the right to collective bargaining. The Committee also notes from the Government’s latest report that the draft legislation on comprehensive modernization of the law concerning public servants was dropped following the change in Government.

The Committee recalls that it is contrary to the Convention to exclude from the right to collective bargaining those categories of public employees who are not engaged in the administration of the State. In this respect, the Committee considers that teachers carry out different duties from officials engaged in the administration of the State, and therefore should enjoy the guarantees provided for under Article 4 of the Convention. The Committee recalls that negotiations need not necessarily lead to legally binding instruments so long as account is taken in good faith of the results of the negotiations in question. The Committee expresses the hope that the positive experience recently acquired through close consultation and dialogue with the public servants’ trade unions will provide further opportunities to ensure that teachers can engage in formal negotiations and fully exercise the right to collective bargaining.

In the light of the above comments, the Committee once again requests the Government to indicate in its next report measures taken or contemplated to study, together with the trade union organizations concerned, ways in which the current system could be developed so as to ensure a proper application of the Convention.