Observation (CEACR) - adoptée 1994, publiée 81ème session CIT (1994)

The Committee notes the information contained in the Government's report in reply to the comments of 25 February 1993 of the German Confederation of Trade Unions (DGB). It also notes the conclusions of the Committee on Freedom of Association in Case No. 1692 (291st Report of the Committee, paras. 191-227, approved by the Governing Body at its 258th Session, November 1993).

1. Denial of the right of access to the workplace for trade union officials who do not belong to the enterprise. The Committee recalls that the DGB considers that, since there are no enterprise unions in Germany, trade union officials from outside the enterprise must be able to look after the interests of workers in the enterprise. In its previous reports, the Government considered that there was no need to take any legislative measures to ensure that such representatives have access to the enterprise since, according to the Government, there was no dispute on this issue between the employers and the workers.

In its comments of February 1993 the DGB indicates that the provisions of section 2(2) of the 1972 Act respecting the organization of enterprises, granting right of access to the workplace to the representatives of unions represented in the enterprise, are too vague. It adds that the text in question does not deal with the right of access of trade union representatives from outside the enterprise in establishments depending on the Church and other similar establishments and recalls that the Decision of 1981 of the Federal Constitutional Court does not grant access to trade union representatives from outside the enterprise. It considers that such a situation is at variance with Article 3 of the Convention which guarantees the right of workers to elect their representatives in full freedom. It explains that many of the activities involved in representing the interests of workers can only be carried out by trade union representatives from outside the enterprise since a single trade union member working in the enterprise could not possibly cope with all the activities, and it considers that the issue must be regulated by law.

The Committee notes the Government's statement in its report that with regard to section 2(2) of the 1972 Act respecting the organization of enterprises, the Federal Labour Court ruled in a decision of 25 March 1992 that a trade union is represented in an enterprise when at least one worker in the enterprise is a member of it and that it is for the trade union in question to provide evidence of such membership. According to the Government, this issue has not as yet given rise to any disputes. It indicates that as regards, for example, the institutions of the post and communications services, section 2(2) of the Act respecting representatives of federal staff, which grants the right of access only to delegates of unions represented in these institutions, is of little relevance in practice since 92 per cent of the workers concerned belong to the three unions represented in them. There is therefore no need to grant the right of access to workplaces to trade union representatives from outside the institutions in question.

The Committee again recalls that it has indicated several times that to deny the right of access to the workplace to trade union representatives from outside the enterprise, where these representatives consider that they do need access, is to restrict the right of workers' and employers' organizations to organize their management and activities in full freedom, and that the public authorities must refrain from any intervention likely to restrict this right. While recognizing that the right of access should not affect unduly the activities of the enterprise concerned, the Committee again requests the Government to indicate in its next report the measures taken to guarantee that trade union representatives, even if they do not belong to the enterprise, have access to the workplace should they consider it necessary.

2. Requisitioning of postal service employees (Beamte) to replace striking state employees and manual workers (Angestellte) in the postal services. With reference to its previous comments, the Committee notes with interest the ruling of 5 April 1993 of the Federal Constitutional Court to the effect that the secondment of public service employees (Beamte) to departments where state employees and manual workers (Angestellte) are on strike is not compatible with the German Constitution unless such secondment is expressly regulated by law. It expresses the firm hope that, in accordance with the above ruling, the Government will not resort in future to requisitioning public employees to break a strike.

3. Ban on strikes in the public service. The Committee notes that the DGB points out that the nature of public service duties and the relationship of loyalty by which public servants are banned may not be relied on to diminish the rights of parties to collective bargaining provided for in article 9(3) of the Constitution. The DGB therefore considers that public employees other than those acting as agents of the public authority should have the right to strike, and that it is not possible, under article 33(5) of the Constitution, to exclude all public servants from the right to strike.

The Committee notes with regret that the Government states once again that the ban on strikes for all public servants, regardless of their functions, does not infringe the Convention which, the Government states, applies only to workers bound by a private law contract. It adds that public servants may not resort to strikes in view of the nature of their relationship of confidentiality and loyalty which is governed by public law. This position is justified in particular by the fact that under article 33(5) of the Constitution the legislator must, in determining conditions of employment, take account of the fundamental principles and rules of the public service and the principles of assistance to the population and maintenance of public services. According to the opinion and case law of the courts, the concept of sovereign powers contained in article 33(4) of the Constitution is not confined to those authorities that traditionally intervene (police, tax authorities, penal system, etc.) but extends wider in a modern State which plays a role in a society and industry.

The Committee must again recall that the principle whereby the right to strike may be restricted or prohibited in the public service or in essential services would become meaningless if the legislation defines the public service or essential services too broadly. The prohibition should therefore be confined to public servants exercising authority in the name of the State or to services the interruption of which would endanger the life, personal safety or health of the whole or part of the population (see 1994 General Survey on Freedom of Association and Collective Bargaining, paras. 158 and 159).

It therefore asks the Government to take the necessary steps to guarantee to public servants other than those exercising authority in the name of the State and to their organizations, the right to organize their activities and formulate their programmes of action to defend their economic, social and occupational interests, including by resorting to strike action, without any interference on the part of the public authorities, in accordance with the principles laid down in Articles 3 and 10 of the Convention. It asks the Government to indicate any measures taken to this end in its next report.

Moreover, the Committee notes the comments submitted by the DGB on 8 February 1994 which were received by the Office as the Committee had already begun its regular session. It will examine the substance of these comments at its next session in the light of the Government's forthcoming report.