Demande directe (CEACR) - adoptée 2006, publiée 96ème session CIT (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.