Solicitud directa (CEACR) - Adopción: 2020, Publicación: 109ª reunión CIT (2021)

Convenio sobre las condiciones de trabajo (hoteles y restaurantes), 1991 (núm. 172) - Alemania (Ratificación : 2006)

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The Committee takes note of the supplementary information provided by the Government in light of the decision adopted by the Governing Body at its 338th Session (June 2020). The Committee proceeded with the examination of the application of the Convention on the basis of the supplementary information received from the Government this year, as well as on the basis of the information at its disposal in 2019.

The Committee notes the Confederation of German Employers’ Associations (BDA) received on 28 August 2018, as well as the observations of the International Organisation of Employers (IOE) received on 31 August 2018. The Committee also notes the observations of the Food, Beverages and Catering Union (NGG) received on 21 November 2019. The Government is requested to provide its comments in this respect.

Article 3 of the Convention. Adoption of a national policy. The Government indicates that, as of 1 January 2020, the general statutory minimum wage was fixed at € 9.35 per hour. It adds that the Minimum Wage Act imposes a number of obligations on employers, including documentation and reporting requirements, obligations which apply to the hospitality and hotel industry. The Government indicates that application of the general statutory minimum wage to the hospitality and hotel industry may contribute to improvements in working conditions for workers in this sector. The Committee notes that, according to the third Report of the Minimum Wage Commission, a particularly high proportion of jobs in the hotel and restaurant industry paid wages of less than € 8.50 an hour before the minimum wage was introduced. The Government indicates that there was a clear drop in the number of jobs paying in the minimum wage range between 2014 and 2018 (from 51.5 to 16.2 per cent in the restaurant industry and from 32.6 to 8.3 per cent in the hotel industry). In its supplementary information, the Government indicates that the amendments introduced by the Act of 11 December 2018 to the Act on Part-time and Temporary Work of 21 December 2000 improved working conditions in the sector. The Committee notes that the amendments establish a right to part-time work for a limited period for workers who have already been in their current employment for more than six months and who work in businesses that generally have more than 45 employees. In addition, the amendments facilitate the ability of those already working part-time on an open-ended basis to move to a vacant job with increased working hours by shifting the burden to the employer of establishing that the worker is not suitable for the vacant position. In its observations, with which the IOE concurs, the BDA expresses the view that the labour law, which applies to employees in the catering sector, fully meets the requirements of the Convention. The Committee draws the Government’s attention to the importance of establishing a national policy whose objective is the improvement of the working conditions of workers employed in hotels and restaurants. It notes that the Government does not provide information in respect of the existence of a national policy as required by the Convention. The Committee therefore reiterates its request that the Government communicate concrete updated information on the measures taken to develop and adopt a national policy designed to improve the working conditions of those employed in hotels, restaurants and similar establishments covered by the Convention.

Article 4. Hours of work. In its 2014 direct request, the Committee noted that, pursuant to section 7 of the Working Hours Act, the parties to collective agreements have, under certain circumstances, the option of agreeing terms that deviate from the terms of the Act. It requested the Government to provide information on the practical application of these provisions to workers employed in hotels and restaurants, including information on pay for overtime hours and the number of additional hours performed on average in the sector. In its report, the Government indicates that an option of particular relevance to the sector is the possibility of extending for up to one year – by collective agreement – the period of time within which compensatory time off must be given for overtime hours worked. The Government indicates that it has no data on the number of enterprises in which this option is applied. The Committee notes the data provided from the Institute for Employment Research, indicating that, in the fourth quarter of 2019, the average number of hours worked per worker in the hospitality industry totalled about 286, with an overall total of about 475 million hours worked by all workers in the sector. During the same period, 9.2 hours of overtime (4.4 hours of paid overtime and 4.8 hours of unpaid overtime) were worked per worker on average in the hospitality industry, with a total of 15.3 million overtime hours worked by all workers in the sector. The Committee notes that the proportion of paid hours of overtime to total hours of overtime was less than half during the relevant period: 48 per cent. In addition, the Committee notes the Government’s indication that overtime hours are compensated at the worker’s normal hourly wage or in paid time off. In its supplementary information, the Government indicates that the amended Act on Part-Time and Temporary Work is intended to give greater planning and income security to workers who do work on an on-call basis, in accordance with article 4(4) of the Convention, by restricting the amount of additional work that may be awarded via an on-call arrangement. Pursuant to the amendments, employers may, in the context of on-call work, allocate only up to an additional 25 per cent of weekly working hours if a minimum number of working hours has been agreed in respect of the duration of the weekly working hours. Where a maximum number of working hours has been agreed in respect of the duration of the corresponding weekly working hours, employers may only allocate up to 20 per cent fewer weekly working hours in this manner. The Committee notes that, in the absence of a fixed number of working hours per week under on-call working arrangements, there is a presumption that 20 working hours have been agreed. The Committee requests the Government to continue to provide updated statistical information on compensation for overtime hours worked in establishments covered under the Convention, as well as on the number of additional hours performed on average. It further requests the Government to provide information on measures taken to ensure that overtime hours performed by workers in the sector are compensated by time off with pay by a higher rate or rates of remuneration for the overtime worked, or by a higher rate of remuneration, as determined in accordance with national law and practice, and after consultations between the employer and the workers concerned, or their representative, as indicated by the Working Conditions (Hotels and Restaurants) Recommendation, 1991 (No. 179), paragraph 7(3).

Part V of the report form. Application in practice. In its observations, the NGG expresses concern regarding the extent of illegal practices -including breaches of the minimum wage through illegal employment- in the hospitality sector. The NGG indicates that, in 2018, the customs unit checked 9,239 businesses in the hospitality industry for undeclared work and illegal employment, uncovering breaches of the minimum wage regulations in one out of every ten hotels or restaurants. According to the NGG, 915 non-compliance procedures and 373 prosecutions were brought in the course of the 1,527 priority checks that customs carried out in 2019 in the hotel and restaurant industry. The Committee notes that the NGG calls for intensive minimum-wage checks and points to the need for frequent and prompt interventions by the Tax Enforcement Unit for Undeclared Work. It also stresses the importance of maintaining accurate records of working hours and strict observance of the minimum wage documentation obligations. The Committee requests the Government to provide its comments in this respect and to provide information on the manner in which the Convention is applied, and particularly statistics on the number of workers and establishments covered by the measures giving effect to the Convention, extracts from the reports of the inspection services indicating the number of inspections carried out and the contraventions reported, recent studies on conditions of employment and working conditions in the sector, challenges encountered in the application of the Convention, such as high proportion of undeclared workers in the sector, their consequences and measures taken to address these.

COVID-19 pandemic. The Committee notes that the accommodation and food services sectors have been among the “hard-hit” sectors following the outbreak of the COVID-19 pandemic and the measures adopted by the Governments to contain it. In the context of the global COVID-19 pandemic, the Committee recalls the guidance provided by international labour standards. In that regard, the Committee wishes to draw the Government’s attention to the Employment and Decent Work for Peace and Resilience Recommendation, 2017 (No. 205), which provides guidelines for the formulation and implementation of effective responses to the profound socio-economic repercussions of the pandemic. The Committee invites the Government to provide up-to-date information in its next report on the impact of the COVID-19 pandemic on the application of the provisions of the Convention.