Direct Request (CEACR) - adopted 2017, published 107th ILC session (2018)

Replies received to the issues raised in a direct request which do not give rise to further comments (CEACR) - adopted 2011, published 101st ILC session (2012)

Direct Request (CEACR) - adopted 2006, published 96th ILC session (2007)

Part IV (Unemployment benefit) of the Convention, Article 20 (in conjunction with Article 69). In its previous comments, the Committee has been drawing the Government’s attention to the fact that the conditions governing the suspension of the entitlement to unemployment benefit established by sections 119 and 121 of Book III of the Social Code (SGB III) may in certain respects be more restrictive than those derived from the definition of the contingency contained in Article 20 of the Convention, as the suitability of employment offered by the placement services was no longer assessed in accordance with such generally recognized criteria as skills, qualifications, acquired experience and length of service in the previous occupation of the person concerned. In reply, the Government indicates that the provisions on suitability of employment are not exclusively governed by section 121, SGB III, but also by the general principles laid down in section 1, SGB III. These state that employment promotion benefits, placement services being part of them, serve above all to promote individual employability by preserving knowledge, skills and abilities, and to counteract inferior employment. The local employment agencies are following these principles in their placement activities by attempting to integrate unemployed persons primarily in line with their qualifications. However, if, in the labour market exposed to structural adjustment and globalization, placing the person into employment equal to that previously exercised is evidently impossible, the answer to the question whether employment offered in other occupation is suitable to him is based on the level of remuneration in relation to his prior income. In the light of these aspects, the Government suggests the reconsideration and, if necessary, amendment of Article 20 in conjunction with Article 69 of the Convention, as these provisions date back to 1952 and are no longer in line with the labour policy in the age of globalizations.

The Committee draws the Government’s attention to the fact that Article 20, in relation to Article 69 of the Convention, has been reconsidered by the adoption of the Employment Promotion and Protection against Unemployment Convention, 1988 (No. 168), which Germany has not ratified. In contrast with Convention No. 102, which contains no definition of the term “suitable employment”, Article 21(2) of Convention No. 168 includes an expressly defined set of criteria to be used in assessing the suitability of employment. The application of these criteria, “under prescribed conditions and as far as appropriate”, to concrete cases of unemployment is left much to the discretion of the responsible national authorities, which often have to strike a difficult balance between taking into account previous experience and qualifications of the unemployed person on the one side and the actual state of the labour market on the other side, where the demand for such qualifications may be an uncertain variable. In this context, the Committee has always been vigilant to ensure that, whatever discretionary power the State might have retained to judge the employability and the behaviour of unemployed persons in the current labour market situation, they are treated with due respect for their acquired professional and social status and any sanctions imposed on them are kept inside the limits prescribed by Article 69 of Convention No. 102. The Committee would therefore like the Government to continue to indicate in its future reports any changes in the national legislation and practice related to the conditions governing entitlement to and suspension of unemployment benefit.

Direct Request (CEACR) - adopted 2005, published 95th ILC session (2006)

Part IV (Unemployment benefit) of the Convention. (a) Article 20 (in conjunction with Article 69). The Committee refers to comments that it has been making since 1998 in relation to the application of Part IV (Unemployment benefit) of the European Code of Social Security, which contains similar provisions. The Committee considered the conditions governing the suspension of the entitlement to unemployment benefit established by sections 119 and 121 of Book III of the Social Code (SGB III) to be, in certain respects, more restrictive than those derived from the definition of the contingency contained in Article 20 of the Code/Convention, as the suitability of employment offered was no longer assessed in accordance with such generally recognized criteria as skills, qualifications, acquired experience and length of service in the previous occupation of the person concerned. Under the terms of section 121(5), employment shall not be deemed unsuitable merely because it does not involve an occupation for which the worker has been trained or which the worker has exercised. The rules (Durchführungsanweisungen) for the implementation of section 121 emphasize that "this provision does not allow for any special protection of an applicant’s normal occupation. The applicant’s training and skills shall be taken into consideration for the purpose of deciding upon suitability only in so far as they are reflected in the remuneration on which the applicant’s unemployment benefit is based". The Committee pointed out that these provisions may have the effect of depriving unemployed persons of the possibility of protecting their acquired occupation and skills from unsuitable job offers during the initial period of unemployment under the threat of losing their unemployment benefit, as well as undermining the responsibility of employment offices for providing better placement, counselling and vocational training services to enable the unemployed to obtain employment that is suitable for their skills and experience. For these reasons, the Government has been asked to reconsider the situation, taking into account its general responsibility under Articles 70(3) and 71(2) of the Code (Articles 71(3) and 72(2) of the Convention) for the proper administration of employment services and the due provision of unemployment benefit in all cases covered by Article 20 of the Code/Convention during the period fixed by Article 24.

In its thirty-third annual report on the Code in 2004, the Government stated that the placement and integration efforts of the employment agencies are first and foremost aimed at reintegrating unemployed persons into working life in line with their professional qualifications and personal interests. However, if such integration turns out to be impossible, the community of insured persons (who finance the unemployment insurance scheme in Germany by means of their contributions) may expect that an unemployed person also accept other jobs that are offered on the labour market. Any other policy leads to a situation in which unemployment would take precedence over (possible and acceptable) employment and would thus contradict the legally enshrined precedence of placement into employment over the receipt of wage replacement benefits (section 4 of Book III of the Social Code). Accordingly, German employment services have made increased efforts over the last few years to promote the willingness required on the part of unemployed persons to participate and make adjustments in the context of their reintegration into working life, and they have also taken measures to enforce this aim.

The Committee notes this information. It wishes to point out that the principle of precedence of active placement into employment over passive handout of wage replacement benefits is inherent in the definition of the contingency given in Article 20 of the Convention, which arises only in situations of inability to obtain or be placed into suitable employment. The need to coordinate the system of protection against unemployment with the employment policy and the provision of benefits with the work of the placement services is expressly recognized by the international social security law, which requires, in particular, that the methods of providing unemployment benefit should be such as to contribute to the promotion of full employment as a priority objective, while avoiding creating disincentives either to work or to employment creation (Convention No. 168, Articles 2, 7 and 14). The difference between these provisions of the European and international social security standards and the same principle of precedence of placement over benefit handouts, as it is enshrined in German legislation, consists in that the latter admits placement in any possible and acceptable, but not necessarily suitable, employment, while the former provides for a limited period of protection of the acquired occupation and skills of the unemployed from the unsuitable job offers. The Committee also draws attention to the discrepancy between German law, which has formally abolished the time-limited protection of the occupation and skills of the unemployed, and the placement practices of employment agencies, which is still aimed at reintegrating unemployed persons in line with their professional qualifications. In the view of the Committee, this discrepancy may be overcome through better coordination between the provision of the benefit and the placement services on the basis of the internationally recognized criteria for assessing the suitability of employment offered. Taking into account that such coordination falls under the general responsibility of the State for the proper administration of the employment service and the due provision of the unemployment benefit under Articles 71(3) and 72(2) of the Convention, the Committee would like the Federal Employment Agency to be asked to consider issuing a special circular letter to its employment offices reminding them of the country’s obligations under the Convention and the Code to enable unemployed persons to obtain suitable employment and not to apply sanctions for refusing to accept unsuitable job offers at least during the initial period of the unemployment benefit.

(b) Suspension of benefit. Article 69(h). The Committee takes note from the thirty-third annual report on the Code of the measures aimed at further tightening of the conditions of entitlement to, and disqualification from, unemployment benefit. The report indicates that sanctions for violating insurance principles, which are currently set out in various Regulations with different legal consequences, will now be merged into one consistent regulation entailing one sanction in the form of a period of disqualification up to a maximum of 21 weeks. In case of termination of employment by the claimant or because of his failure to report at a set date, such disqualification periods will henceforth be counted as the benefit period. In 2003, the number of disqualification periods imposed under the Regulations on acceptable work (subsection 4 of section 121, Book IV of the Social Code) and Regulations on disqualification periods (subsection 1 of section 144, Book III of the Social Code) has increased by 2.7 times in comparison with 2002 (from 57,000 to 153,000), as the new Regulations have facilitated enforcement procedures for the employment offices. The entry into force of the Regulation on early reporting duty, which provides for cuts in unemployment benefits if future termination of employment is not reported in due time, has resulted in a greater workload for the bodies of appeal because many unemployed persons were appealing against cuts in benefits. The Government highlights that these Regulations have contributed to making unemployed persons aware that, in the future, a higher degree of self-responsibility will be expected from them when it comes to ending unemployment. The burden of proof for having good reason not to act in accordance with this responsibility now belongs to the unemployed person himself/herself, including in cases of dismissal for gross negligence. In accordance with the principle of "giving support and making demands", higher individual responsibility is accompanied by the "individualized placement concept", according to which employment agencies are legally obliged to draw up a comprehensive jobseeker’s profile, identifying his professional and personal characteristics such as knowledge and skills, qualifications, professional experience, whether his/her knowledge and skills are up to date, whether he/she is able and willing to engage in further training, and what concrete labour market assistance is needed in each individual case. The individual placement strategy resulting from the profiling is laid down in a binding integration agreement, which includes offers to be made by the employment agency and activities required from the unemployed person for a certain period of time. A copy of an integration agreement was included in the Government’s thirty-fourth annual report on the Code in 2005, together with the rules for the implementation of section 144 of Book III of the Social Code, the statistics on disqualification periods imposed according to this section, the number of appeals and court actions for the year 2004, and the compilation of selected rulings of the Federal Social Court defining "gross negligence" and "good reason". The Committee will examine this information at its next session when it will have the necessary translations. In the meantime, it would like the Government to continue to indicate any changes in the national legislation and practice related to the conditions governing entitlement to and suspension of unemployment benefit.

Part VI (Employment injury benefit). Article 36, paragraph 3. The Committee notes with satisfaction that, following the recommendation made in its 2003 conclusions on the application by Germany of the European Code of Social Security, the Government has issued a circular to remind the central association of the statutory occupational accident insurance funds responsible for the application of the Regulations on the conversion of an employment injury pension into a lump-sum payment (sections 76 and 78 of Book VII of the Social Code) of the country’s obligations under Article 36(3) of the Code/Convention, which permits such conversion only in cases where the degree of incapacity is slight or the competent authority is satisfied that the lump sum will be properly utilized, in order to prevent victims of employment injuries from falling into poverty after having inadvertently spent their lump-sum payments.

Direct Request (CEACR) - adopted 1996, published 85th ILC session (1997)

Part XIV (Miscellaneous provisions, Article 76, paragraph 1(b)). With reference to its previous comments, the Committee notes the detailed statistical information concerning the scope of coverage of each social security branch, the amount of family benefits and the share of insurance contributions borne by the employees protected, provided in the Addendum to the Government's report. It notes, however, that these statistics concern only the old Länder. The Committee therefore once again hopes that the Government's next report will also include statistics on the new Länder in the manner required by the report form on the Convention.

Observation (CEACR) - adopted 1996, published 85th ILC session (1997)

The Committee notes the information contained in the Government's report.

Part XIII (Common provisions), Article 69(i), of the Convention, concerning suspension of unemployment benefit. For a certain number of years, following observations made by the German Confederation of Trade Unions (DGB), the Committee has considered whether section 116 of the Federal Employment Promotion Act, as amended in 1986, is consistent with Article 69(i).

Section 116(3) as amended, permits the suspension of unemployment benefit due to workers who have lost their employment as a result of a trade dispute, but who have not participated in the dispute: (a) when the enterprise in which the persons concerned have been employed falls within the territorial and occupational scope of the collective agreement which gave rise to the dispute; and (b) when the enterprise in question does not fall within the territorial scope of the collective agreement but belongs to an occupational sector covered by it. In the latter case, benefits are only suspended if a claim which is the same - but not necessarily identical - in nature and scope to the principal claim giving rise to the dispute has been made and if the results of the dispute will in all probability be endorsed, "in essential respects", by the collective agreement which is not the subject of dispute, but which applies in the territory where the enterprise is located. The Neutrality Committee, composed of employers' and workers' representatives and the President of the Federal Labour Institute, determines whether these conditions for suspension of benefits under section 116 have been met.

In its previous comments, the Committee stressed the importance of the practical application of the amendment to section 116 in assessing compliance with Article 69(i) and requested copies of any relevant decisions of judicial bodies.

In December 1994, the DGB submitted a communication concerning the judgement of the Federal Social Tribunal published 4 October 1994 (No. BSGE, AZ: 7KeAr 1/93) which confirmed a decision of the Neutrality Committee in most respects and found that, in the circumstances of the case, the requirement provided for under section 116(3) of the Employment Promotion Act was met so as to allow the refusal of unemployment benefit in cases of work stoppage due to strike actions in other geographic regions. The DGB alleged that this decision contravenes Article 69(i) and infringed upon the right to strike.

In reply to the comments of the DGB, the Government fully endorsed the finding of the Federal Social Tribunal that section 116 was in compliance with Article 69(i) and was consistent with the principle that the State should not intervene in an industrial dispute by granting benefits to laid-off workers who will probably also benefit from the result achieved by other workers on strike. According to the Government, such intervention would come about if the State were to assume the loss of earnings risk for workers who will probably also benefit from the result achieved by other workers on strike although they are not themselves directly involved in the industrial action.

The Committee has been supplied with copies of the decisions of the Neutrality Committee (1 July 1993), the Federal Social Tribunal (4 October 1994) and the Constitutional Court (BVG, 14 April 1995), concerning section 116 of the BVG Employment Promotion Act, as amended in 1986. The Committee has examined these decisions. It notes that, according to the Federal Social Tribunal and the Constitutional Court, section 116(3)(2) requires that the Neutrality Committee find the following facts: (1) that the workers affected by the work stoppage but not involved in the strike in another geographic region must have formulated claims concerning their collective agreements and be in the process of asserting them; (2) that the principal claim they have asserted or intend to assert is "the same in nature and scope" as the principal claim asserted by the workers on strike; and (3) that "in all probability" the one set of claims will be substantially endorsed in the other. All three elements must exist throughout the duration of the denial of benefit under section 116(3)(2); a change in circumstances eliminating any one element will result in a termination of the application of the Neutrality Committee's decision upon which the Employment Office determines individual claims for benefit in case of work stoppage due to an industrial dispute. The Federal Social Tribunal found that in the case before it, all three elements clearly existed simultaneously for a limited period of time during the work stoppage, and it presented data on the high correlation in recent years in the wages and training allowances in the same wage sector between the geographic areas involved in collective bargaining more or less simultaneously in May 1993. The Federal Social Tribunal found irrelevant the fact that the industrial action in this case was taken in reaction to the employers' withdrawal from the collective agreement of 1991.

The Committee notes in particular that the Federal Social Tribunal considered the principal claim in a strike to be that for which the trade union mobilizes its membership with a view to industrial action, and which has predominantly characterized that action. The principal demands in each geographic sector must be the same in terms of nature (i.e. its objective) and scope (i.e. its extent), without necessarily being identical: according to the Federal Social Tribunal, the legislative intent was to indicate that the word "same" did not imply that the claims were fully equivalent in every detail; however, "same" should be considered in each individual situation to determine the economic importance of the claim. The Federal Social Tribunal emphasized that the term "same" should be interpreted narrowly: "(t)he claim made and the action's principal demands have to be so close to each other that they almost entirely correspond." Although the Federal Social Tribunal considered that the differences in the kind of agreement proposed (company level, sectoral level, etc.) did not have any bearing on the determination of similarity of claims, it stressed that such differences should be scrutinized in connection with the assessment of probability.

Lastly, according to the Federal Social Tribunal, the Neutrality Committee has no flexibility margin or prerogative of evaluation, when it decides whether the result of the dispute in one sector will probably be transferred to the other; and its forecasts are subject to judicial review. The forecast must stand up to a stringent analysis and the conclusions must appear highly probable on the basis of specific information and experience. The Constitutional Court generally affirmed the Federal Social Tribunal's ruling and held that section 116 was consistent with the German Constitution, based on the facts of the case before it.

The Committee recalls that in its previous observations, especially the 1965 observation addressed to Germany, it has discussed at length the meaning of "as a direct result of a work stoppage" contained in Article 69(i). This wording is intended to distinguish between workers who have little or no interest in the outcome of a trade dispute and therefore should not have to bear the risk of such an action, and those who have a substantial interest in the outcome of the trade dispute and therefore may more reasonably be expected to shoulder the burden along with the workers on strike. As the Committee has stated in previous comments, the key issue is whether the trade dispute is likely to influence the claimants' conditions of work. In this respect it considers that the standard of "in all probability" applied in section 116(3)(2)(b) distinguishes adequately between interested and uninterested workers. The Committee also considers that the assessment of whether the claims are the "same in nature and scope" to be a key issue in evaluating compliance of section 116 with Article 69(i). The Committee is aware that the amendment to section 116(3), is likely to affect adversely entitlement to unemployment benefit during industrial action but, based on the Federal Social Trinbunal's findings of fact, it appears that the suspension of benefit in this specific case was not inconsistent with the provisions of the Convention. In this respect, however, the Committee again draws attention to the Federal Social Tribunal's statement that the term "same" must be determined in each individual case, and it would appreciate being kept informed of any future rulings on section 116.

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

Part XIII (Common provisions), Article 69(i), of the Convention. In its previous comments concerning the suspension of unemployment benefit in the event of trade disputes, the Committee requested the Government to supply information on the manner in which sections 116 and 133, last subsection, of the Federal Employment Promotion Act are applied in practice and to provide copies of any rulings issued by the Neutrality Committee, as well as of any rulings concerning the constitutionality of section 116 of the Act. In this respect the Committee notes the communication, dated 12 December 1994, received from the German Confederation of Trade Unions (DGB) which refers to a judgement of the Federal Social Court of 4 October 1994 concerning the application of section 116 of the above-mentioned Act; according to the DGB, this judgement would have an adverse effect on the application of the Convention. This communication was transmitted by the Office to the Government for observations. In its reply received on 18 January 1995, the Government states that it was not possible to provide information at the present time on the substance of the matter, since the grounds of the judgement of the Federal Social Court are not yet known. The Government adds that as the question of constitutionality of section 116 of the Federal Employment Promotion Act has now been brought before the Constitutional Court, it is unable to indicate when any further information would be available. The Committee takes note of this statement. It hopes that the Government will be able, in its next detailed report, at the latest, to provide full information on the practical application of the aforementioned sections of the Federal Employment Act, including on the matters raised by the DGB, together with copies of the relevant judicial decisions.

Direct Request (CEACR) - adopted 1993, published 80th ILC session (1993)

Part XIV (Miscellaneous provisions, Article 76, paragraph 1(b). The Committee notes with interest the detailed information and statistics supplied by the Government in its report. It notes, however, that the statistics supplied by the Government mainly concern the former Länder. It therefore hopes that the Government's next report will also include statistics on the new Länder in the form required by the report form on the application of the Convention.

Observation (CEACR) - adopted 1993, published 80th ILC session (1993)

Part XIII (Common provisions), Article 69(i), of the Convention. In its previous comments concerning the suspension of unemployment benefit in the event of trade disputes, the Committee requested the Government to supply information on the manner in which sections 116 and 133, last subsection, of the Federal Employment Promotion Act are applied in practice and to provide copies of any rulings issued by the Neutrality Committee. It also requested the Government to supply any other comments relating to the communication transmitted by the German Confederation of Trade Unions (DGB), dated 19 March 1990. In its reply, the Government states that to its knowledge during the period covered by the report, no case under the above provisions has been reported. It adds that the Neutrality Committee has handed down no rulings in this respect. The Committee notes this information. It requests the Government to continue to supply information in its future reports on the manner in which the above provisions of the Act are applied in practice. It would also be grateful if the Government would supply the text of any ruling issued on the constitutionality of section 116 of the Employment Promotion Act.

Observation (CEACR) - adopted 1991, published 78th ILC session (1991)

Part XIII (Common provisions), Article 69(i) of the Convention. The Committee notes the comments made by the German Confederation of Trade Unions (DGB), dated 19 March 1990, concerning the implementation of Article 69(i) of the Convention. According to the above organisation, section 116 of the federal Employment Promotion Act, as amended in 1986, is not consistent with the Convention. The above communication was brought to the attention of the Government by the International Labour Office on 30 March 1990.

In this connection, the Committee recalls that it commented on the question of the suspension of unemployment benefit in the event of trade disputes in its 1989 observation in which it asked the Government to continue to provide information on the way in which practical effect is given to the provisions of section 116 of the Employment Promotion Act and the last subsection of section 133 of the same Act, as amended by the Act of 1986. It also asked the Government to provide copies of any rulings issued by the Neutrality Committee.

Consequently, the Committee again expresses the hope that the Government will not fail to provide the information requested in its next report, together with any other comments it deems appropriate on the latest communication from the German Trade Union Confederation. It would be grateful if the Government would also provide the text of any rulings on the constitutionality of section 116 of the Employment Promotion Act, as amended.

Observation (CEACR) - adopted 1989, published 76th ILC session (1989)

1. The Committee has examined the Government's detailed report and notes with interest the improvements in the social security scheme and particularly the increases in the level of benefits and the new allowances for dependent children. The Committee hopes that the Government will also be able to provide information on the effect given to Part VIII of the Convention (Maternity benefit), which has also been accepted by the Federal Republic of Germany.

2. Part XIII (Common provisions), Article 69(i), of the Convention. With reference to its previous observations concerning section 116 of the Employment Promotion Act and the Regulations issued under this section (which provides for the suspension of unemployment benefit in certain cases where workers who have lost their employment as a result of a trade dispute are not directly implied in the dispute, whereas under the Convention, these benefits may only be suspended if the person concerned has lost his employment as a direct result of a stoppage due to a trade dispute), the Committee notes the Government's explanations on the scope of the amendments made to the above-mentioned legislation by the Act of 15 May 1986 to ensure the neutrality of the Federal Employment Institute (BGBl, Part I, page 721). According to the provisions of the new legislation and the Government's explanations, unemployment benefit due to workers who have lost their employment as a result of a trade dispute, but who are not directly involved in the dispute is suspended: (a) when the enterprise in which the persons concerned have been employed falls within the territorial and occupational scope of the collective agreement which gave rise to the dispute, and (b) when the enterprise in question does not fall within the territorial scope of the collective agreement but belongs to an occupational sector covered by it. In the latter case, benefits are only suspended if a claim which is "similar" - but not necessarily identical - in nature and extent to one of the main claims giving rise to the dispute has been made and if the results of the dispute will in all probability be endorsed, "in essential respects", by the collective agreement that is not the subject of dispute but applies in the territory where the enterprise is located.

According to the information contained in the report and the provisions of new subsections 5 and 6 of section 116 of the Employment Promotion Act, the question whether: (a) the claim of the workers who were not directly involved in the trade dispute in question is similar - but not necessarily identical - in nature and extent to one of the main claims that gave rise to the dispute; and (b) the results of the conflict will in all probability be taken into account "in essential respects" by the collective agreement applying in the territory where the enterprise which employed the workers is situated is determined by a decision of the competent body of the Federal Employment Institute, namely, the Neutrality Committee. This Committee is made up of employers' and workers' representatives who sit on the above Institute's Executive Board, and only issues a ruling after hearing the opinion of the umbrella organisations of the parties to the collective agreement which was the subject of the trade dispute in question. These organisations may also institute proceedings against the ruling before the Federal Social Tribunal (Bundessozialgericht). Furthermore, in the event of a work stoppage, the employers must prove before the Federal Employment Institute that the loss of employment is indeed due to a trade dispute, and their notification must be accompanied by a statement of the views of the representatives of the workers concerned.

The Committee takes due note of the explanations provided in the report. It recalls, however, that this matter has been the subject of comments from workers' organisations, the most recent of which (1988) was submitted to the International Labour Office by the German Trade Union Confederation (DGB) in connection with the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), which concerned in particular the amendments made to section 116 of the Act of 1969 by the Act of 1986 concerning the neutrality of the Federal Employment Institute. The Committee therefore requests the Government to continue to provide information in its future reports, on the way in which practical effect is given to the provisions of section 116 of the Employment Promotion Act and the last subsection of section 133 of the same Act, as amended by the Act of 1986 mentioned above. (Please provide also copies of any rulings issued by the Neutrality Committee.)