Informe definitivo - Informe núm. 291, Noviembre 1993

1. 191. In a communication dated 23 December 1992, the German Confederation of Trade Unions (Deutscher Gewerkschaftsbund/DGB) and the German Postal Workers' Union (Deutsche Postgewerkschaft/DPG) presented a complaint against the Government of Germany alleging violation of trade union rights. They forwarded further information on 5 July 1993.
2. 192. The Government forwarded its observations in communications dated 16 March, 5 May and 10 August 1993.
3. 193. 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). It has not ratified the Labour Relations (Public Service) Convention, 1978 (No. 151).

A. The complainant organizations' allegations

1. 194. In their communication of 23 December 1992, the DGB and DPG claim that the obligation imposed on civil servants (Beamte) under public law to take action aimed at breaking a lawful strike organized in the spring of 1992 by state employees (Angestellte) violates the principle of freedom of association.
2. 195. As regards the alleged facts, the complainant organizations explain that in the spring of 1992 the federal public service unions submitted a claim for a significant pay rise under the terms of the collective agreement. It was not possible during four rounds of collective bargaining with the public sector employers to reach an accord regarding a new collective agreement. On 8 April 1992, the arbitration committee which had been set up to settle the dispute recommended a pay rise of 5.4 per cent, a compensation payment backdated to 1 April 1992 and a single payment of DM500 for the period January-March 1992. This recommendation was rejected by the employers. Faced with the employers' refusal to increase salaries by more than 4.7 per cent, the trade unions held a vote, which confirmed their position, and called on their members working in several public sectors to take lawful strike action. The strike lasted from 24 April to 7 May 1992. The complainant organizations explain that going on strike was the only way to obtain the pay increase recommended by the arbitration committee and have it included in a collective agreement.
3. 196. During the dispute, members of the German Postal Workers' Union went on strike in several sectors of the federal Post Office, which forms a major part of the federal public service. However, the postal employers, unlike other public sector employers, made use of a large number of civil servants to act as strike breakers. The complainant organizations point out that it is these measures which are the subject of their complaint.
4. 197. The complainant organizations explain that the federal Ministry of the Interior, who is the main partner on the employers' side in wage negotiations and who negotiates on behalf of all sectors of the public service (the Federation, the Länder and the municipal authorities), was responsible for requisitioning civil servants for strike-breaking duties, particularly in the postal services. At the level of the central government, during discussions at the federal Ministry of the Interior, the "requisitioning of civil servants during a labour dispute" was again justified by invoking the current interpretation of the law. The ministers present were then invited to draw their own conclusions about the implications of this for labour law and for the regulations governing the public service. Following these discussions, a number of the agencies of the federal Post Office ordered the requisitioning of civil servants "in order to minimize disruption to the service", to "provide emergency services" and "maintain emergency operations", to quote from the instructions issued by postal service management.
5. 198. In reply to a letter dated 22 April 1992, in which the DPG sharply criticized the requisitioning of civil servants during a lawful strike by state employees, the senior management of the Post Office reiterated its legal position on 23 April 1992 and reaffirmed it with its Directive of 27 April 1992, in response to which orders were given for the requisitioning of a large number of civil servants.
6. 199. The complainant organizations then enumerate the adverse consequences for themselves and their members of using civil servants to break the strike: trade union solidarity between members of different status (civil servants, state employees or manual workers) was undermined, and the effectiveness of the strike was jeopardized, since any refusal to carry out strike-breaking actions is regarded as an offence subject to disciplinary sanctions under the law govdrning civil servants. They add that two-thirds of civil servants employed in the postal services are members of the DPG, and many of them were requisitioned during the strike.
7. 200. The complainant organizations also state that the parties to the 1991 collective agreement for the postal and telecommunications sector had reached agreement on the maintenance of minimum services. Under the terms of that agreement, however, the maintenance of such services in the old Länder was possible only to a very limited extent. During the 1992 strike, civil servants who had been requisitioned were used mainly to carry out tasks which do not come under that agreement and which for the most part do not form part of their normal duties.
8. 201. As regards the legal aspects of the case, the DGB and DPG point out that the supervisory bodies of the ILO have on several occasions criticized the Government in relation both to the law governing the public service as a whole and to its ban on strikes and, more specifically, the requisitioning of individuals to break a strike which is the subject of the present complaint. As to the relevance of Article 3 of Convention No. 87 in this instance, the Committee of Experts in its examination of the 1980 postal strike stated, on the question of maintaining a minimum service, that:
9. With regard in particular to the requisitioning of civil servants (Beamte) who are not engaged in the administration of the State to replace strikers, the Committee has always considered that, if the extent and duration of the strike could cause "an acute national emergency", a minimum service concerning a specified category of workers would seem to be justified. In that case, however, the trade unions should be able to participate in defining the minimum service along with the employers and the public authorities (see Report of the Committee of Experts, (RCE), Report III, Part 4A, 1987, observation concerning the Federal Republic of Germany, p. 181).
10. Later, the Committee considered that "it cannot be said that the stopping of such services or enterprises creates in itself a situation of acute national crisis" and that consequently "the requisitioning of postal civil servants (Beamte) during a dispute in that service was such as to restrict the right to strike recognized to postal employees (Angestellte) as a means of defending their professional and economic interests" (see RCE, 1989, p. 167).
11. 202. The complainant organizations consider that the situation in 1992 was comparable to the one which prevailed in 1980, that it did not constitute an acute national crisis, and that the criteria for a minimum service were not respected. The requisitioning of civil servants during the 1992 strike could therefore not be regarded as justified.
12. 203. They also cite the limits - as indicated by the Committee of Experts and the Committee on Freedom of Association - within which a minimum service may legitimately be maintained: "Such a minimum service should be confined to operations that are strictly necessary to avoid endangering the life, personal safety or health of the whole or part of the population ..." (cf. Digest of decisions and principles of the Committee on Freedom of Association, 3rd edition, 1985, para. 415). According to the complainant organizations, it is clear from the requisition orders issued by post office managers that their main objective was to maintain an uninterrupted service, to protect customers and to avoid losing orders. The complainants consider that the effects cited are the normal consequences of a strike which in no way meet the conditions under which it is legitimate to maintain a minimum service. They conclude that Articles 3 and 10 of Convention No. 87, seen together, have been violated in so far as the right to strike of the trade unions and their members have been curtailed in a number of ways.
13. 204. As regards Convention No. 98 and, in particular, Article 6, the complainant organizations cite the view of the Committee that "Convention No. 98 covers all public servants who do not act on behalf of the public authorities. Consequently, it covers employees of the postal and telecommunications services" (cf. Digest, op. cit., para. 602).
14. 205. As regards Article 1 of Convention No. 98 as interpreted by the Committee of Experts, the protection it provides covers not only dismissal and disciplinary measures but also any other discriminatory measure (see General Survey on Freedom of Association and Collective Bargaining, 1983, para. 260). According to the complainant organizations, a civil servant who is threatened with disciplinary action under the public service regulations if he refuses to carry out strike-breaking tasks is not willing to suffer discrimination (up to and including dismissal) and will generally carry out such tasks. This in itself constitutes anti-union discrimination, as do disciplinary procedures initiated in the relatively few cases where individuals have refused to perform strike-breaking tasks.
15. 206. As regards the stance adopted by the federal Government, the complainant organizations state that, on 26 June 1992, the parliamentary group of the SPD (Social Democratic Party) asked the federal Government a supplementary question (kleine Anfrage) concerning the specific measures which had been taken to implement the conclusions and recommendations formulated on several occasions by the Committee of Experts relating to the right to strike of broader categories of civil servants, in particular those in the postal services, and to the prohibition of requisitioning civil servants in the event of a strike by other employees. In its reply of 21 October 1992, the Government stated, inter alia, that "it was not within its scope to give effect to the observations of the Committee of Experts". It also stated that "the requisitioning of civil servants in the event of strikes is permitted by the Federal Administrative Court and by the federal Labour Court" and that "a challenge by the DPG to the constitutionality of the federal Labour Court's ruling was pending in the federal Constitutional Court". In this connection, the Government had expressed the view that "this appeal was without merit since the ruling of the federal Labour Court did not curtail fundamental rights". It thus abides by its own interpretation of the law respecting the rights and obligations of civil servants in the event of strikes, and takes the view that "it is lawful to requisition civil servants to perform tasks in workplaces affected by a strike". The complainant organizations conclude that the Government persists in refusing to comply with the obligations set out in the international labour Conventions.
16. B. The Government's reply
17. 207. In its initial communication of 16 March 1993, the Government had stated that it would prefer to await a ruling from the federal Constitutional Court on a similar case from 1980 before replying to the legal aspects of the allegations. The Government explained that the ruling in question would be in response to a constitutional appeal lodged by the DPG against the ruling of the federal Labour Court that civil servants could be requisitioned without restriction in the event of a strike and that such action did not amount to an infringement of trade union rights.
18. 208. As regards the factual aspects of the allegations, the Government stated that most of the facts cited by the complainant organizations were reflected accurately. Nevertheless, it wished to clarify and expand on certain points.
19. 209. With regard to the discussions at the federal Ministry of the Interior, the Government explained that their sole purpose as far as the employers were concerned was to prepare for the strike which had been announced. The "guidelines to be followed in the event of an industrial dispute", which had long since been announced in circulars, had once again been explained. They included observations on the constitutional prohibition on strike action by civil servants. The allegation made by the complainant organizations that civil servants had been requisitioned to replace striking workers was therefore without foundation. The aim of the meeting was to inform the people concerned. Such a procedure was essential prior to any industrial action. The decisions regarding the manner in which the directives were to be applied had been transmitted to the departments concerned.
20. 210. The Government added that, in certain departments in the postal service, the decision to requisition civil servants had been taken on a flexible basis, to reflect the needs of the services concerned and sometimes only for a few hours. Furthermore, although a refusal to obey a requisition order could lead to disciplinary measures under the civil service law, no such measures had been taken against civil servants who had refused to replace striking workers. Similarly, the allegation that DPG members had been requisitioned to replace striking workers was unfounded, as was the allegation that requisitioned officials had been assigned to tasks which did not correspond to their training or normal functions. The Government had also stated that it was not possible to break an agreement on the maintenance of minimum services in the federal postal service since no such agreement existed.
21. 211. In its communication of 5 May 1993, the Government stated that on 5 April 1993 the federal Constitutional Court ruled that the assignment of civil servants (Beamte) to workplaces affected by a strike by state employees and workers (Arbeiter and Angestellte) was not compatible with the German Constitution unless governed specifically by legislation. In the Government's view, the present case should be regarded as resolved in so far as it concerned the requisitioning of civil servants to replace striking state employees and manual workers. In the light of the legal situation established by the federal Constitutional Court ruling and in the absence of any legislation expressly allowing such requisitioning, situations will no longer arise where civil servants will be requisitioned to take the place of striking public service employees and workers. The Government adds that the legal position which it had previously adopted with regard to Convention No. 87 is in no way affected by the above.
22. C. Additional information from the complainant organizations
23. 212. In a letter dated 5 July 1993, the complainant organizations state that they do not share the Government's point of view. Although the federal Constitutional Court ruled that the requisitioning of civil servants to replace striking workers was not constitutional, the Government has maintained a legally unacceptable position with regard to Convention No. 87. The complainant organizations indicate that their position in the present case will depend largely on the Government's reply to the following questions:
24. -What does the Government mean by its statement that its position with regard to Convention No. 87 is not affected? Does this statement apply to the right to strike of civil servants in general or, as in the past, only to the unilateral requisitioning of civil servants to replace workers involved in a lawful strike? In other words, does it mean that the Government has changed its legal position with regard to the requisitioning of civil servants to replace strikers and that it shares the view of the ILO supervisory bodies that such requisitioning is not compatible with the principles of freedom of association or with Convention No. 87?
25. -Can the federal Government give an assurance that civil servants will no longer suffer adverse consequences and will not, specifically, be subjected to disciplinary measures?
26. 213. In the view of the complainant organizations, this also applies to the federal Government's position with regard to the observations of the Committee of Experts concerning the assignment of civil servants to break a strike.
27. 214. They further recall that the Government has still not acted on the observations of the Committee of Experts or on the recommendations made by the Committee on Freedom of Association concerning Case No. 1528.
28. 215. The complainant organizations are also concerned about the Government's reply of 21 October 1992 to a question raised in the Parliament (Bundestag). They quote the Government as follows:
29. Convention No. 87 establishes freedom of association and protection of the right to organize. These rights are also guaranteed by the German Constitution. The federal Government takes the view that it is highly questionable from the legal standpoint for certain supervisory bodies of the ILO to draw conclusions from Convention No. 87 which go beyond the text of that instrument and which would be binding on States having ratified it with regard to the way in which they respond to industrial action. The ratification of an international labour Convention applies only to the text of that Convention. The Government considers that the supervisory bodies of the ILO are bound by the principle of the protection of confidentiality and certainty of the law, a principle which rules out any interpretation which goes totally beyond the established text of an ILO instrument.
30. According to the complainant organizations, this position is untenable and contradicts all the basic statements made by the Government with regard to the supervisory machinery of the ILO. They therefore consider it necessary for the Government to change its legal position with regard to Convention No. 87.
31. D. Additional reply from the Government
32. 216. In its communication dated 10 August 1993, the Government reiterates its view that there are no longer any grounds for the present complaint following the 5 April 1993 ruling by the federal Constitutional Court that it was no longer possible to requisition civil servants in the absence of a law expressly authorizing it. The Government again states that no disciplinary measures were taken against civil servants who refused to obey the requisition order. Three disciplinary inquiries had been initiated before the ruling of 5 April 1993, but were subsequently dropped.
33. 217. As to its legal position with regard to Convention No. 87, the Government states that the position it adopted in its communication of 5 May 1993 concerns the scope of the Convention. The Government nevertheless wishes to clarify the reply it gave on 21 October 1992 to a question raised in the Bundestag. The Government does not deny that the right to strike is essential to the freedom of action of trade unions and, in that sense, is implicitly recognized by the Convention, even if the text contains no reference to it. The Government considers, however, that there is no justification for inferring from that Convention a detailed body of law on the right to strike which would be binding on States which have ratified it. It points out that it already made this position clear to the Committee on the Application of Standards at the International Labour Conference in June 1993.
34. 218. The Government also requests that this information be transmitted to the Committee of Experts.

E. The Committee's conclusions

1. 219. The Committee notes that the allegations made in the present case concern the requisitioning of civil servants (Beamte) in the postal services to perform tasks abandoned by employees and manual workers (Angestellte) in the federal postal services during a lawful strike.
2. 220. The Committee notes that, in the case in question, the allegations, whose factual aspects are not contested, concern guidelines issued by the management of the federal Post Office and other managers by which civil servants in the postal services were requisitioned to break a lawful strike initiated by the federal public service unions on 24 April 1992. This followed the rejection by the public service employers of an arbitration award of a 5.4 per cent pay rise, a compensation payment backdated to 1 April 1992, and a single payment of DM500.
3. 221. The complainant organizations claim that the requisitioning of civil servants in the postal services to replace employees engaged in lawful strike action violates Articles 3 and 10, viewed together, of Convention No. 87, in accordance with the principles and decisions of the Committee of Experts and the Committee on Freedom of Association. They also consider that the threat of disciplinary measures (up to and including dismissal) under the law governing the civil service against civil servants who refuse to obey requisitioning orders violates Article 1 of Convention No. 98.
4. 222. First of all, the Committee notes with interest the ruling of the federal Constitutional Court of 5 April 1993, according to which the assignment of civil servants (Beamte) to workplaces affected by a strike of state employees and manual workers (Angestellte) is not compatible with the German Constitution without explicit legislative provisions to that effect. It observes that, in the Government's view, the present case should be regarded as resolved since it concerns an issue on which the Court has handed down a ruling. The Committee welcomes the Government's recognition that, in the absence of legislation expressly authorizing requisitioning, it is no longer possible for civil servants to be requisitioned to take the place of striking state employees and workers. However, the Committee notes that the Government adds that its previous legal position with regard to Convention No. 87 has in no way been affected by that ruling.
5. 223. Under these circumstances, the Committee recalls that it has always recognized the right to strike of workers and their organizations as a legitimate way of defending their economic and social interests (see Digest, op. cit., para. 362). Like the Committee of Experts, the Committee feels bound once again to draw the Government's attention to the principle of freedom of association, according to which the right to strike may be restricted or prohibited in the civil service - civil servants being those who act on behalf of the public authorities - or in essential services in the strict sense of the term, i.e. services, the interruption of which would endanger the life, personal safety or health of the whole or part of the population (see Digest, op. cit., para. 394). Moreover, the principle regarding the prohibition of strikes in essential services might lose its meaning if a strike was declared illegal in one or more undertakings which were not performing an essential service in the strict sense of the term (see Digest, op. cit., para. 400).
6. 224. In a similar case, the Committee recognized that a stoppage in services such as the postal service could disrupt the normal life of the community, but that it was difficult to concede that such stoppages were by definition likely to bring about an acute national crisis (see 268th Report of the Committee, Case No. 1451 (Canada), para. 98). The Committee therefore trusts that the Government will guarantee to civil servants who are not acting on behalf of the public authorities and to their organizations the right to organize their activities and formulate their programmes to defend their economic, social and occupational interests, including by recourse to strike action, without any hindrance by the public authorities.
7. 225. Furthermore, the Committee has pointed out on several occasions that it would appear legitimate that a minimum service be maintained in the event of a strike the extent and duration of which might be such as to result in an acute national crisis endangering the normal living conditions of the population. Such a minimum service should be confined to operations that are strictly necessary to avoid endangering the life, personal safety or health of the whole or part of the population; in addition, workers' organizations should be able to participate in defining such a service in the same way as employers and the public authorities (see Digest, op. cit., para. 415).
8. 226. As regards the allegation that the law governing civil servants provides for disciplinary measures up to and including dismissal for civil servants who refuse to obey requisition orders to replace striking workers, the Committee notes the concern of the complainant organizations relating to the threats of disciplinary measures which striking workers could have been subjected to. However, it notes the Government's statement that, while the law in question provides for disciplinary measures, no such measures have been taken against civil servants who have refused to take the place of the strikers. While taking note of this information, the Committee reminds the Government that the imposition of sanctions on public servants on account of their participation in a strike is not conducive to the development of harmonious industrial relations (see Digest, op. cit., para. 437).