Rapport définitif - Rapport No. 302, Mars 1996

Cas no 1820 (Allemagne) - Date de la plainte: 05-DÉC. -94 - Clos

Allegations: The collective bargaining rights of teachers

1. 80. The complaint in this case is contained in a communication from the German Confederation of Trade Unions (DGB) and the Teachers' Union (GEW) dated 5 December 1994. Subsequently, in a communication of 10 March 1995, the GEW sent additional information. The Government sent its observations in a communication dated 14 August 1995.
2. 81. Germany has ratified the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87), and the Right to Organize and Collective Bargaining Convention, 1949 (No. 98).

A. The complainants' allegations

1. 82. In its communication of 5 December 1994, the German Confederation of Trade Unions (DGB) and the Teachers' Union (GEW) point out that they have repeatedly approached the ILO concerning the application of Conventions Nos. 87 and 98 by Germany, and that in 1990 the Committee examined a complaint submitted by these organizations concerning the restrictions on the right to strike of teachers in the Federal Republic of Germany. The complainant organizations state that the situation has not changed and that they therefore feel bound to submit a new complaint concerning the restrictions placed on its trade union rights and more specifically the right to bargain collectively.
2. 83. The complainant organizations state that the actual issue concerns the substantial increase in working time of teachers in the Federal Republic of Germany (irrespective of whether they have the status of civil servants (Beamte) or salaried employees (Angestellte)) without any negotiation with the trade unions and by a unilateral legal decision of the Government. The complainant organizations point out that the working time of teaching staff in the Federal Republic of Germany is regulated by the Länder, since teachers are employees of the Länder, and that between 1992 and 1994 working time of teachers in the various Länder has been increased by different amounts. The complainant organizations specify the following Länder: Bavaria, Berlin, Brandenburg, Lower Saxony, Rhineland-Palatinate, Saarland, Saxony, Saxony-Anhalt, Schleswig-Holstein and Thuringia. They add that some 400,000 teachers have been affected by this increase in working time and that in most cases working time has been increased by one hour, which is equal to an overall increase of around 4 per cent.
3. 84. The complainant organizations specify the following Länder in which the authorities decided in various ways to increase the working time of teachers on a unilateral basis:
   • - Lower Saxony: on 8 June 1993 the government of the Land of Saxony decided to increase working time and this decision was communicated to the workers, their trade unions and the public through a press release issued by the Land government. This increase in working time came into force on 1 August 1994 through the publication of an ordinance. There were no negotiations or substantial discussions with the teachers' trade union;
   • - Saarland: at its 124th ordinary sitting on 30 March 1993, the Ministerial Council decided that: "with account being taken of the increasing number of school-pupils and in order to ensure that teaching requirements are met, the Ministry of Education and Sport has been requested, on the basis of Ministerial Council Resolution of 16 February 1993, and without prejudice to the present number of teaching-free Saturdays, to increase the actual teaching time of teachers by adapting it to the average teaching time in the old federal Länder, by one hour per week - bearing in mind the special characteristics of individual schools". The increase in working time became effective in the 1993-94 school-year. There were no negotiations or substantial discussions with the teachers' trade union;
   • - Saxony: the working time of teachers was increased by an amendment by the Ministry of Education of Saxony to the administrative regulations governing the working time of teachers in public schools. This increase became effective on 20 August 1993. There were no negotiations concerning working time between the Land government and the trade union, despite the fact that the Teachers' Union requested the government for such negotiations. On 29 June 1993, the Land government formally decided that there would be no negotiations on the compulsory increase in the working time of teachers;
   • - Saxony-Anhalt: the working time of teachers in public schools was increased under an ordinance issued by the Land government on 31 August 1993. The increase became effective as of 1 August 1993, although it contained provisions stipulating that the increase for certain groups would be suspended until 31 July 1994. There were no negotiations or substantial discussions between the Land government and the trade union; neither was there any official advance notice of the planned increase;
   • - Bavaria and Schleswig-Holstein: not only was there an increase in the working time of teachers but also in that of all civil servants. The overall increase in working time in these Länder was carried out after a civil servant consultation procedure, which implied nothing more than a mere hearing which does not comply with the obligations set forth in Convention No. 98. The complainant organizations state that the procedure was the same in the other Länder (unilateral action by the Land government and lack of negotiations or substantial discussions).
4. 85. In connection with the employment relationship and the fixing of teachers' working conditions, the complainant organizations state that in the "old" (western) federal Länder of the Federal Republic of Germany, teachers in public schools are generally civil servants and that under German civil service law, civil servants may not conclude collective agreements. Remuneration and working conditions are unilaterally fixed by the employer by means of laws and ordinances without there being any negotiations or substantial discussions on such matters. In all the Länder in which the increase in working time affected only teachers, there was no kind of negotiation or discussion between the employer and the trade union. The same also applied to those Länder in which the working time of civil servants as a whole was increased, since the applicable hearings procedure established under civil service law in no way met the obligation prescribed by Convention No. 98 for negotiations and substantial discussions, even outside the scope of collective bargaining in the strict sense of the term. Civil service law in the Länder generally stipulates that the respective Ministry must give a hearing to the trade union confederations before the issuing of "general regulations under civil service law". The complainant organizations add that different procedures are used for such hearings, depending on the law and administrative practice; this means in specific terms that: (i) the hearing may in no way be considered as negotiations (all trade union attempts towards reaching an agreement have been rejected on the grounds that such matters fall within the exclusive competence of Parliament and the Government; and (ii) individual trade unions are not even entitled to a hearing.
5. 86. The complainant organizations point out that in the new Länder, teachers were until now almost exclusively employed as salaried employees but that their working time (compulsory teaching periods) was not regulated independently by collective agreement; indeed, trade unions were refused this right. The complainant organizations point out that the following provisions contained in the special regulation 2lI BAT No. 3 (Federal Salaried Employees Collective Agreement-East) also apply to teachers who are salaried employees in the new Länder: "the provisions for civil servants with equivalent functions shall apply. If there are no such civil servants, working time shall be regulated by the contract of employment". According to the complainants, this implies that the collectively agreed normal weekly hours of work applicable to other employees in the public service do not apply to teachers.
6. 87. Finally, the complainant organizations state that the regulation of working time (compulsory teaching periods) is without doubt a central component of the conditions of work of teachers and that a unilateral increase in teachers' working time by the governments of the Länder is a clear violation of the obligations laid down in Convention No. 98 and the established interpretation of the competent supervisory bodies.
7. 88. In its communication of 10 March 1995, the Teachers' Union (GEW) points out that with respect to the teachers in the new Länder, who are salaried employees, it should be taken into account that their working time is normally regulated by collective agreement and that the relevant clause in the special regulations for salaried employees who are teachers, contained in the BAT (Federal Salaried Employees' Collective Agreement-East) stipulates that: "the provisions for civil servants with equivalent functions shall apply". According to the complainant organizations, this implies that it has been laid down by collective agreement that teachers who are salaried employees should be treated as civil servants with equivalent functions. The complainants state that although the collective agreement has been concluded with the competent trade unions, this does not mean that they agree that the regulations for the civil servants in question can be established unilaterally by the employers without substantial union participation.
8. 89. Finally, the complainants stress that the regulation of working time is undeniably an essential component of the working conditions of teachers and that there is no doubt whatsoever that the exemption established by Article 6 of Convention No. 98 concerning public servants does not apply to teachers employed in the public service.

B. The Government's reply

1. 90. In its communication of 14 August 1995, the Government states that it firmly disagrees with the legal evaluation of the facts of the case made by the GEW and the DGB, especially with respect to the compliance of the procedure to establish working time (and other working conditions) for teachers - and for public servants in particular - with ILO Convention No. 98.
2. 91. The Government points out that, first of all, it is erroneous to examine, as the DGB had done, the determination of the working time of teachers "irrespective of whether ... these teachers ... have the status of civil servants or salaried employees". The Government states that in accordance with the traditional principles of the permanent civil service contained in article 33, paragraph 5 of the Basic Law, the working conditions of all civil servants in Germany are not regulated by collective agreement, as in the case of workers and salaried employees in the private sector and in the public service, but by the legislature (and this has been upheld by the Federal Constitutional Court). However, in this procedure, the participation of the relevant trade unions is compulsory, as stipulated in section 94 of the Federal Civil Servants Act (BBG) (for the federal administration) and in section 58 of the Act on civil service framework legislation (BRRG) (for the administration in the federal Länder). (Section 94 of the BBG states: "the Federations of the appropriate unions shall participate in the preparation of general regulations of the civil servant relationship". Section 58 of the BRRG states that: "whenever the highest authorities of the Länder are preparing legal regulations of the civil servant relationship, the Federations of the appropriate trade unions and occupational organizations shall participate in these preparations".)
3. 92. The Government points out that this state of affairs has been set forth in many of its reports submitted by the federal Government to the ILO on the application of Convention No. 98 (1958, 1972 and 1978) and that for 37 years the Committee of Experts on the Application of Conventions and Recommendations did not see fit to raise any doubt as to the compatibility of the situation in Germany with the Convention. The Government adds that neither the DGB nor the German Union of Salaried Employees (DAG), who regularly receive copies of the federal Government's reports, have ever raised any doubts that the situation described might not be consistent with the Convention; indeed, any doubts of this nature would be unjustified given that Article 6 of the Convention stipulates that it does not deal with the position of public servants engaged in the administration of the State. The Government goes on to state that attempts have at times been made to limit the non-applicability of the Convention to specific categories of public servants and that this has been justified on the grounds that in the English version of Article 6 reference is made to "public servants engaged in the administration of the State", whereas the French version merely and unequivocally refers to "fonctionnaires publics".
4. 93. The Government states that before inferring that the different wording does in fact mean different categories of public officials - depending upon whether one is reading the English or French version of Article 6 of the Convention - reference must first of all be made to the fact that in accordance with Article 16 of the Convention, the English and French versions of the text are equally authoritative, thus making it impossible merely to state that one of the two versions is binding. The Government adds that, in accordance with the rules of international law, as laid down for instance in the Vienna Convention on the law of Treaties - which although it was adopted later than Convention No. 98 codified international law which already existed at the time Convention No. 98 was drafted - the question of whether there can be international agreement on the validity of one or the other versions must be determined on the basis of specific criteria. These criteria include the principle of good faith, subsequent agreements or practices, other applicable standards and - in addition - the preparatory materials. As to the specific question as to whether the French wording ("fonctionnaires publics") or the English expression ("public servants engaged ..." used in Article 6 of the Convention is authoritative (if it is accepted that the English expression means something different from the French expression), a number of the criteria mentioned above must be examined:
   • - subsequent agreement: in the sixth preambular paragraph of Convention No. 151 reference is made in the French version to "fonctionnaires publics", whereas in the English version, reference is made to "public servants", which represents a departure from Article 6 of Convention No. 98;
   • - subsequent practice: for 37 years the Committee of Experts did not criticize the statutory regulation of the working relations of civil servants without recourse to collective bargaining. This suggests that when making an evaluation of this practice it was guided by its understanding that either the English or the French wording implies that only specific categories of civil servants may be exempted from the application of Convention No. 98 with respect to the settlement of working conditions by means of collective agreement. This view is supported by the sixth preambular paragraph of Convention No. 151 where the need to adopt a new Convention was, inter alia, justified by the fact that, according to the supervisory bodies, a number of countries applied the provisions of Convention No. 98 in such a way as to exclude large groups of public employees from the scope of this Convention. Hence the fact that this situation was put forward as a reason to elaborate a new Convention, is proof that the International Labour Conference may have regretted the above situation but saw no possibility to do anything in the framework of Convention No. 98 (because of Article 6 of this Convention). Convention No. 151 has not been ratified by Germany whose practice to determine conditions of employment of civil servants is perhaps not compatible with Article 7 of this Convention;
   • - preparatory work: during the first discussion on Convention No. 98, the question of its application to those employed in the public service did not arise; however, the Conference Committee recommended, in a general way, that the question of its scope should be examined during the second discussion. The Government points out that in the proposed text of the instrument submitted to the 32nd Session of the International Labour Conference it was suggested that Articles 1 to 5 should not apply to "fonctionnaires au service des administrations publics" or "officials in the service of public administrations". Detailed reasons for this proposal are contained in Report IV(2), page 30 of the English and French texts: "Moreover, in the majority of countries, the conditions of service of officials are fixed not by means of collective bargaining but by law, in many cases after consultation with the trade union organizations representing officials ...". This corresponds precisely to the situation in Germany and the situation thus described was meant to be compatible with the Convention which was being elaborated. The Government mentions that out of the 22 governments which voiced an opinion on the proposed Convention, 17 took no position on Article 6 - thus implying they had no objections to this provision - one welcomed the revision, two disapproved of it, one had certain reservations and another questioned the concept of "public administrations". The Government adds that the discussions were extremely difficult and protracted and that during the discussions on the scope of persons to be covered, seven proposals (including the formula finally adopted) were put on record. It is relevant to note that in the French wording the expression "fonctionnaires publics" was constantly used whereas in the English text the following different terms were used: "public officials", "officials employed in government offices", "public servants", "officials" and finally the definite wording "public servants engaged in the administration of the State". The Government points out that in spite of the difficulties in reaching a final agreement it may nevertheless be deduced from the records that there were two points which received considerable support: (1) freedom of association as laid down in Convention No. 87 should not be denied to any group of state officials; and (2) that other rights laid down in the Convention, especially the right to collective bargaining, should only be able to be denied to those state officials who, on account of their special status, are, in any case, entitled to be protected against those discriminations banned by the Convention. According to the Government, it was clearly felt that the term "fonctionnaires publics" reflected this consensus whereas in the English version it appeared necessary to add "engaged in the administration of the State".
5. 94. The above observations entail the following consequences for the situation in Germany: (i) the fact that civil servants are not entitled to bargain collectively and that their working conditions are established by the legislator with the participation of their trade unions is covered by Article 6 of Convention No. 98; (ii) however, state employees ("agents publics/public employees"; see Article 2 of Convention No. 151) who are not fonctionnaires publics/public servants "engaged in the administration of the State" are guaranteed the right to bargain collectively. This applies in Germany to workers and salaried employees in the public service; and (iii) the wording of Article 6, when relying on internationally accepted criteria for interpretation, does not provide a basis for assuming that it does not apply to certain categories of public servants (i.e. teachers who are public servants). Hence the Government rejects as unfounded the complaint that the fixing of working time for teachers with civil service status in ten federal Länder by the legislator in 1993 contravened Convention No. 98.
6. 95. The Government also rejects that there is a violation of Convention No. 98 as regards teachers who are employed as salaried employees. The application, in their respect, of provisions on working time in force for civil servants is based on rules which have been agreed upon by both parties to collective bargaining. Indeed, parties to collective bargaining have adopted special regulations to determine the working time for teachers with the status of salaried employees. According to Annex 2lI BAT No. 3 (which applies to salaried employees employed as teachers in the general school system and in vocational training schools) the provisions concerning working time for civil servants with equivalent functions apply to the teachers with salaried employee status. Number 3 of Annex 2lI BAT, which entered into effect on 1 May 1994, reads as follows: "Sections 15, 15(a), 16, 16(a), 17, 34 and 35 - working time - compensation for those not employed full time - time bonuses, overtime. Sections 15, 15(a), 16, 16(a), 17, 34, paragraph 1, subparagraph 1, sentence 3 and subparagraph 2 and section 35 shall not apply. The provisions for the civil servants with equivalent functions shall apply. If there are no civil servants with equivalent functions, working time shall be regulated by the contract of employment".
7. 96. The Government points out that the original version of the BAT of 23 February 1961 already contained the provision that the working time which applies to teachers with civil service status should also apply to those with salaried employee status. Furthermore, the GEW explicitly supported this arrangement since on 30 March 1961, it concluded a follow-up collective agreement with the bargaining "community (Tarifgemeinschaft) of the German Länder" - which was identical to the original version of the BAT.
8. 97. The parties to collective bargaining have not only agreed to refer to the provisions applicable to civil servants with equivalent functions as regards working time for teachers, indeed, there are many similar references in the BAT for all salaried employees (for example, up to 1982, the cost-of-living allowances was established with reference to civil service pay regulations). Hence even core elements of the employment relationship, such as the amount of remuneration, was left, by mutual agreement, to legislation.
9. 98. The Government states that it is possible, under national law, to agree in collective bargaining that provisions for civil servants with equivalent functions shall also apply to salaried employees. This has been upheld by the highest courts of the land and is undisputed. The Government points out that according to the Federal Labour Court (BAG) the expression "Bestimmungen" (provisions) not only refers to laws and legal ordinances for civil servants but also to the relevant administrative provisions, ordinances and decrees. It includes all relevant abstract regulations for civil servants. Furthermore, according to the jurisprudence of the BAG, general references which deal with collective bargaining rights by referring to provisions applicable to civil servants, are admissible and do not contain any inadmissible delegation of legislative authority. This has been decided by the Federal Labour Court in 1982 in connection with Annex 2lI BAT No. 3. The court pointed out the narrow connection with the regulations on working time for teachers with civil service status. According to the wishes of the parties to the collective agreement, salaried employees should have the same legal status as civil servants and, as regards requirements, the scope and duration of services rendered, civil servants and salaried employees should be treated by the same principles and legal standards. The Government therefore points out that reference to provisions for civil servants with equivalent functions is not only legally admissible but also justified on its merits.
10. 99. The Government states that as a result of the provision contained in Annex 2lI BAT No. 3 there have been a number of cuts in weekly hours of work for teachers employed on a salaried-employee basis since it first entered into effect in 1961 and that no negotiations were required with the salaried employees on this matter. The cuts occurred automatically and at the same time as those of civil servants with equivalent functions - and were thus in the interest of the trade unions concerned. The Government adds that in a number of Länder there was indeed on one recent occasion - after many cuts - an increase in the working time of teachers and that this was also in accordance with the wishes of the parties to collective agreement, as a consequence of Annex 2lI BAT No. 3. This increase did not exceed the limits of the working time in force in 1961 which formed the basis of the decision of the parties. For instance, in Bavaria, which is quoted by the complainants (which is one of those Länder in which the working time of teachers has often been cut and on one occasion increased), the weekly hours of work of a teacher are as follows: in April 1961 teachers in primary and high schools worked 30 hours - at present they work 28 hours in primary schools and 27 hours in high schools; in April 1961 in intermediate (Realschule) and secondary schools, scientific staff worked 24 hours and technical/fine arts staff 28 hours - at present, scientific staff work 23 hours and technical/fine arts staff 27 hours.
11. 100. As long as the BAT refers, as regards working time, to the provisions applicable to civil servants with equivalent functions, it is not possible to engage in collective bargaining on this issue. The Government points out that the collective agreement is final as it does not authorize any collective bargaining at lower levels to include on its agenda the working time of teachers. If trade unions wish to negotiate, they must first ensure that the regulation presently in force is made ineffective - which would be possible, for instance, by denouncing the relevant provision of the agreement. In summary the Government points out that regulations on the working hours of teachers with civil servant status may also cover teachers with salaried employee status and that this corresponds entirely with the wishes of the parties to collective bargaining, which have been laid down and clearly expressed in the collective agreements.
12. 101. Finally, the Government states that the working time of teachers is regulated by collective bargaining in the meaning of Convention No. 98 and that: (a) the fixing of working time for teachers with civil service status by legislation or means of administrative regulations, ordinances and decrees (and not by means of collective agreement) is in compliance with Convention No. 98; and (b) the application of working time established for teachers with civil service status to those working with the status of salaried employees is based on a collective agreement; hence the obligations contained in Convention No. 98 are fulfilled and the complaints of the DGB and the GEW are unfounded.

C. The Committee's conclusions

1. 102. The Committee notes that the allegations in this case refer to the increase in the working time of teachers (both those with the status of civil servants and salaried employees) in various Länder (states) by the authorities, without these workers having been given the possibility of bargaining collectively.
2. 103. The Committee notes that according to the account given by the complainant organizations on the establishment of working conditions (including working time) of teachers, those whose employment relationship is regulated by German civil service law (civil servants) may not conclude collective agreements and their working conditions are unilaterally established through laws and ordinances (they state that under civil service law, the authorities must give a hearing to trade unions when they issue general regulations, but that this hearing may in no way be considered as negotiations and that individual trade unions are not entitled to a hearing). Similarly, the Committee notes that teachers employed with the status of salaried employees enjoy the right to collective bargaining; however, their working time is not established by independent collective agreement and they are covered by the Federal Salaried Employees Collective Agreement (BAT), in which it is stipulated that teachers who are salaried employees should be subject to the same provisions as civil servants with equivalent functions. Finally, the Committee notes that the complainants point out that this agreement (BAT) has been concluded by the competent trade unions but this does not mean that they agree that the regulations for the civil servants in question may be established unilaterally by the employers without substantial union participation.
3. 104. As concerns the allegation that the working time of civil servants (in the teaching sector) is applied to employees with the status of salaried employees as a result of the Federal Salaried Employees Collective Agreement (BAT) involving an increase in working time imposed unilaterally in various Länder), the Committee notes that the Government states that: (1) the provisions concerning the working time of civil servants apply to teachers with the status of salaried employees by virtue of the fact that this was agreed by the parties to collective bargaining and set forth in the BAT agreement; (2) this agreement contains many references to salaried employees on various matters and does not only refer to working time (for example, the cost of living allowance, section 29 of the BAT); (3) under German law it is possible to agree through collective bargaining that provisions for civil servants with equivalent functions shall also apply to salaried employees; and (4) if the trade unions (of salaried employees) wish to negotiate the question of working time collectively, they should denounce the respective provision of the agreement.
4. 105. In this respect, the Committee notes that the complainant organizations confirm that the competent trade unions agreed under a collective agreement that teachers with the status of salaried employees should be treated as civil servants with equivalent functions. While noting that the Government mentions the possibility of denouncing provisions of the above-mentioned collective agreements (BAT) - although according to available data it does not seem as if this has occurred until now - the Committee notes that the competent parties freely negotiated the contents of the collective agreement, although the complainants do not state they are satisfied with the contents agreed upon in the respective agreement. Furthermore, the Committee notes that the Government points out that the weekly hours of work of teachers have been cut on various occasions and that they did not require negotiations with the salaried employees. In these circumstances, given that the parties representing the corresponding sectors freely subscribed to these negotiations and that the salaried employees were aware in advance of the unilateral system in force to establish the working conditions (including the working time) of civil servants, the Committee considers that there was no violation of the principles of free and voluntary collective bargaining.
5. 106. As regards the allegation that it is impossible for teachers with the status of civil servants to bargain collectively and that, accordingly, the working time of teachers was unilaterally increased in various Länder, the Committee notes that according to the Government: (i) in accordance with the traditional principles of the civil service, the working conditions of all civil servants in Germany are not regulated by collective agreement but by law; (ii) the participation of the relevant trade unions is compulsory in all preparations of general regulations as stipulated in section 94 of the Federal Civil Service Act; (iii) Article 6 of Convention No. 98 stipulates that it does not deal with the position of public servants engaged in the administration of the State and that this sentence which is contained in the English version differs from the French version (the Government refers amongst other things to the preparatory work before the adoption of Convention No. 98 and recalls the discussions held upon the determination of the scope of those it should cover in the public service).
6. 107. In this respect, it is up to the Committee to examine to what extent the legal system applicable to civil servants with respect to collective bargaining complies with the general principles of freedom of association put forward by the ILO supervisory bodies and in particular by the Committee on Freedom of Association.
7. 108. More specifically, as regards the question of whether teachers with civil servant status, whose labour relations are regulated by civil service law, should enjoy the right to collective bargaining from the standpoint of principles of freedom of association and collective bargaining, the Committee has taken note of the many and detailed arguments put forward by the Government to the effect that there are not sufficient grounds in Convention No. 98 to exclude teachers with civil service status from the exception provided for in Article 6 of the above-mentioned Convention. In this respect, the Committee wishes to refer to the opinion of the Committee of Experts on the Application of Conventions and Recommendations (see General Survey on freedom of association and collective bargaining, 1994, para. 200), to the effect that it could not allow the exclusion from the terms of the Convention of large categories of workers employed by the State merely on the grounds that they are formally placed on the same footing as public officials engaged in the administration of the State and who, by their functions, are directly employed in the administration of the State - such as, for example, civil servants employed in government ministries and other comparable bodies. In the Committee's opinion, these functions are not comparable with those of teachers. Similarly, the Committee has pointed out on various occasions, in the light of the principles of freedom of association, the desirability of promoting voluntary collective bargaining, according to national conditions, with a view to the regulation of terms and conditions of employment of teaching staff (see Digest of decisions and principles of the Committee on Freedom of Association, 3rd edition, 1985, para. 601) and has clearly pointed out the importance that collective bargaining as implied in Article 4 of Convention No. 98 should be carried out in the education sector (see 244th Report, Case No. 1349 (Malta), para. 205).
8. 109. The Committee is aware of the obligations which ensue for officials being subject to their own regulations, to the principles of lawfulness and confidentiality inherent in these regulations and of the fact that in the legal system prevailing in Germany, it is impossible for officials with civil servant status to conclude collective agreements in the same way as those in the private sector or salaried employees in the public service. However, the Committee stresses that, in its opinion, teachers do not carry out tasks specific to officials in the state administration; indeed, this type of activity is also carried out in the private sector. In these circumstances, the Committee stresses the importance that teachers with civil servant status should enjoy the guarantees provided for under Convention No. 98.
9. 110. The Committee understands that within the framework of the public service regulations (in which Parliament adopts legislation in the final instance), it might be necessary for collective bargaining to be conducted by means of special procedures and in this respect, Convention No. 98 ratified by Germany, as well as other Conventions such as Conventions Nos. 151 and 154, allow a certain flexibility. This flexibility envisages, as pointed out by the Committee of Experts, a wide range of working conditions (most specifically in its recent General Survey on freedom of association and collective bargaining, the Committee of Experts referred to the reduction of working hours or other arrangements, varying wage increases according to levels of remuneration and fixing a timetable for readjustment provisions). Therefore, within the overall framework of public service regulations established by the Constitution and German legislation it should be possible, while maintaining the budgetary prerogatives of the legislature, to find a formula which would not only allow for a mere hearing but also the possibility for teachers with civil service status to bargain collectively. Although Convention No. 151 has not been ratified by Germany, the Committee believes that Article 7 would be useful to refer to. This provision stipulates that:
   • measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilization of machinery for negotiation of terms and conditions of employment between the public authorities concerned and public employees' organizations, or of such other methods as will allow representatives of public employees to participate in the determination of these matters.
   • Consequently, the Committee requests the Government to take account of these considerations and take measures which, in accordance with the German legal system, and taking into account Article 7 of Convention No. 151 would permit the above-mentioned workers the right to bargain collectively.

The Committee's recommendations

1. 111. In light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • The Committee requests the Government to take measures which, in accordance with the German legal system, and taking into account Article 7 of Convention No. 151 would permit teachers with civil service status the right to bargain collectively.