Germany

"Articles 4 and 6 of the Convention. Right to collective bargaining with respect to conditions of employment of public servants not engaged in the administration of the State. The Committee recalls that it has been requesting, for a number of years, the adoption of measures to ensure that public servants who are not engaged in the administration of the State, enjoy the right to collective bargaining. The Committee had previously noted with interest a 2014 ruling handed down by the Federal Administrative Court holding that, while the prohibition of collective bargaining deriving from article 33(5) of the Basic Law is linked to the civil servant status and applies to all civil servants irrespective of their duties, article 11(2) of the European Convention on Human Rights (ECHR) provides that restrictions to freedom of association could only be justified by the relevant function of the civil servant; and that, in the case of civil servants not exercising sovereign authority of the State, for instance teachers in public schools, there is a collision, which needs to be solved by the federal legislator. According to the Federal Administrative Court, in view of the collision between article 33(5) of the Basic Law and article 11 of the ECHR, the federal legislator needed to considerably broaden, in public service domains that were not characterized by the exercise of genuinely sovereign authority, the participation rights of trade unions of civil servants towards a negotiation model. The Committee regrets that public servants not engaged in the administration of the State are thus deprived of the right to bargain collectively granted to them by the Convention. The Committee recalls in this regard that it has been highlighting for many years that, pursuant to Articles 4 and 6 of the Convention, all public service workers, other than those engaged in the administration of the State, should enjoy collective bargaining rights. It also emphasizes that while the determination of wages is an important element of the scope of collective bargaining, other terms and conditions of work and employment also fall within its scope."

"Article 3 of the Convention. Right of workers’ organizations to organize their administration and activities and to formulate their programmes. The Committee recalls that it has been requesting for a number of years the adoption of measures to recognize the right of public servants who are not exercising authority in the name of the State to have recourse to strike action. The Committee had previously noted with interest a 2014 ruling handed down by the Federal Administrative Court holding that, given that the constitutional strike ban depends on the status group and is valid for all civil servants (Beamte) irrespective of their duties and responsibilities, there is a collision with the European Convention on Human Rights (ECHR) in the case of civil servants (Beamte) who are not active in genuinely sovereign domains (hoheitliche Befugnisse), for instance teachers in public schools, and this collision should be solved by the federal legislator; and that, in the case of civil servants (Beamte) who exercise sovereign authority, there is no collision with the ECHR and thus no need for action. The Committee also noted that in its 2015 ruling, the Federal Administrative Court confirmed that it is the task of the federal legislator to establish a balance between the incompatible requirements of Article 33(5) of the Basic Law and Article 11 of the ECHR and that, as long as this has not been done, the public-law strike prohibition continues to apply and is a disciplinary rule. the Committee observes with regret that the result of the Court’s decision is not in keeping with the Convention, inasmuch as it amounts to a general ban on the right to strike of civil servants based on their status, irrespective of their duties and responsibilities, and in particular a ban on the right of civil servants who are not exercising authority in the name of the State (such as teachers, postal workers and railway employees) to have recourse to strike action. In view of the above, the Committee encourages the Government to continue engaging in a comprehensive national dialogue with representative organizations in the public service with a view to finding possible ways of aligning the legislation more closely with the Convention. Further noting that proceedings against the strike ban for civil servants are currently ongoing before the European Court of Human Rights, the Committee requests the Government to provide information on the resulting decision and on any impact it may have at the national level."