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Comments adopted by the CEACR: Germany

Adopted by the CEACR in 2021

C081 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

In order to provide a comprehensive view of the issues relating to the application of the ratified Conventions on labour inspection, the Committee considers it appropriate to examine Conventions Nos 81 and 129 together.
Legislation. The Committee notes the information provided by the Government regarding the adoption of the Act to improve the enforcement of occupational health and safety, which entered into force on 1 January 2021. The Committee notes that this Act provides for the strengthening of OSH measures mostly in the meat industry while also adopting some amendments to the Occupational Health and Safety Act (ArbSchG) of 7 August 1996, including provisions on inspection. In particular, the Committee notes that according to the new section 21(1a) of the ArbSchG, starting from 1 January 2026, for each calendar year there shall be a minimum annual inspection rate of 5 per cent of the companies operating in the country. The Committee also notes the measures introduced in the new section 21(3a) of the ArbSchG, which provides that the inspection authorities of the Länder shall, after 1 January 2023, transmit information regarding inspections and their results to the accident insurance institution responsible for the inspected establishment.
Article 3(1) and (2) of Convention No. 81 and Article 6(1), (2) and (3) of Convention No. 129. Protection of the rights of foreign workers in an irregular situation concerning their residence status and cooperation with government services and public or private institutions. In its previous comment, the Committee requested the Government to provide information on the notifications to the immigration authorities by labour inspectors, pursuant to section 23(3) of the ArbSchG. It also requested the Government to indicate how it ensures the enforcement of legislation with respect to the payment of wages and other benefits for the period of the effective employment relationship of the foreign workers concerned. The Committee notes the Government’s indication that there were no notifications provided by the labour inspectors to the immigration authorities in 2016 and 2017 pursuant to section 23(3) of the ArbSchG. The Government reports that the inspectors working for personal accidents insurers are asked only sporadically for findings that go beyond their core tasks, which are related to monitoring of occupational safety and advising employers on occupational safety compliance. The Committee also notes the Government’s indication that the responsibility for inspections under the Act to Combat Undeclared Work and Unlawful Employment essentially lies with the Customs Authority’s Tax Enforcement Unit for Undeclared Work (FKS). The Committee further notes that, in reply to its previous comment, the Government reiterates that foreign workers in an irregular situation can assert their rights against employers in the same way as workers in a regular situation or national workers and, in case of a dispute, they can refer their case to the labour courts. While noting that the primary responsibility for the enforcement of the Residents Act and the Act to Combat Undeclared Work and Unlawful Employment lies with other Government agencies, the Committee requests the Government to continue to provide information on the notifications made by labour inspectors to immigration and/or prosecution authorities in application of section 23(3) of the ArbSchG. The Committee also requests the Government to provide further information on the actions undertaken by labour inspectors in those cases where, in the discharge of their duties, they encounter violations of the legal provisions related to conditions of work and protection of wages for migrant workers. In this regard, the Committee requests the Government to collect and provide information on the outcome of judicial proceedings resulting from investigations initiated following actions taken by labour inspectors.
Articles 20 and 21 of Convention No. 81 and Articles 26 and 27 of Convention No. 129. Content of the annual labour inspection reports. The Committee notes that the labour inspection report 2019, hyperlinked in the Government report, contains information on all the subjects listed in Article 21(a)–(g) of Convention No. 81. The Committee also notes that, in reply to its previous request concerning the compliance of the labour inspection report with Article 27 of Convention No. 129, the Government indicates that breakdown statistics for the agricultural sector are reflected in the report with regard to inspection activities carried out by the agricultural employers’ liability insurance association under the Social Insurance Fund for Agriculture, Forestry and Horticulture (SVLFG). Concerning the labour inspectors of the Länder, the Government reports that there are no disaggregated data on the number of inspectors working specifically on agriculture. The Government indicates that this is because inspectors may be responsible for multiple sectors or have cross-sector responsibilities. The Government also indicates that there is no breakdown by sector of the statistics concerning the number of inspection visits conducted and of violations and penalties imposed by the inspection authorities of the Länder. Further, the Committee notes the Government’s indication that a Länder working group has been set up and started working in order to improve the reporting and the collection of sector-based statistics by the inspection authorities of the Länder. The Committee requests the Government to provide information on the progress made by the Länder working group in order to improve the reporting of labour inspection activities in the agricultural sector, in particular concerning the requirements of Articles 27(d) and (e) of Convention No. 129 on statistics of inspection visits conducted and of violations and penalties imposed in agriculture.

Issues specifically concerning labour inspection in agriculture

Articles 4 and 21 of Convention No. 129. Coverage of certain categories of agricultural workers by labour inspection and their registration to ensure their protection through labour inspection. The Committee notes that in its previous comment, it requested the Government to provide information on the system for the registration of workers in agriculture (including apprentices, dependent workers and temporary workers) and the availability of such data to the different labour inspection services. The Committee notes that the Government refers to section 28a(4) of the Social Code (SGB) Fourth Book (IV), Common Provisions for Social Security, which provides for the obligation of the employers operating in the sectors listed in this provision, to report information concerning each employee to the data centre of the pension insurance provider. The Government also indicates that as part of an automated retrieval process, the FKS, which is responsible for inspecting provisions on minimum wage, is able to view the reference data available to the pension insurance provider’s data centre. The Government further indicates that with regard to occupational safety and health, all agricultural enterprises have an accident insurance coverage within the SVLFG’s agricultural accident insurance scheme, which facilitates access to information regarding agricultural establishments. The Committee also notes that in previous reports the Government referred to the Joint German Occupational Health and Safety Strategy (GDA) as the framework of cooperation between the labour inspection authorities of the Länder and the accident insurance providers. Noting that agriculture is not listed among the sectors included in section 28a (4) of the SGB IV, the Committee requests the Government to clarify how the authorities in charge of inspecting provisions on minimum wage can benefit from a system of registration of workers in agriculture in order to ensure an effective labour inspection strategy which includes the protection of particularly vulnerable workers. The Committee also requests the Government to indicate the measures taken in order to ensure that inspection authorities in the Länder have access to the data concerning the agricultural undertakings that have accident insurance coverage within the SVLFG’s agricultural accident insurance scheme. In this respect, it also requests the Government to indicate whether the GDA contains a specific component on cooperation concerning inspection in the agricultural sector.
Articles 6(1)(b), 14, 19 and 21 of Convention No. 129. Effectiveness of labour inspection activities in agriculture. In its previous comment, the Committee requested the Government to provide information on (i) the number of workers in agricultural undertakings, including those that are not subject to mandatory social insurance; (ii) the number of labour inspectors working at the SVLFG and the labour inspection authorities in the Länder; (iii) the number of labour inspections undertaken by the SVLFG and the labour inspection authorities in the Länder during the reporting period; as well as (iv) the number of occupational accidents and cases of occupational disease reported in agriculture during the reporting period. The Committee notes the Government’s reference to the labour inspection report, which provides the number of agricultural workers covered by social security contributions. In addition, the Committee already noted above the Government’s indication that the labour inspectors of the Länders deal with all sectors and there is no inspection staff dealing exclusively with agriculture. The Committee further notes that, according to the labour inspection report, the number of inspectors working for the SVLFG continued to decrease, from 457 in 2017 to 433 in 2019 and that the number of visits conducted by the SVLFG also decrease from 59.906 in 2017 to 40.874 in 2019. In addition, the Committee notes that the number of fatal accidents in the agricultural sector is the highest after the public sector, which includes defence and social insurance administration. In this regard, the Committee requests the Government to provide the statistics concerning agricultural workers that are not subject to mandatory social insurance. It also requests the Government to provide information on the measures undertaken and planned in order to make sure that the number of labour inspectors in agriculture is sufficient to secure the effective discharge of their duties and to ensure that agricultural undertakings are inspected as often and as thoroughly as is necessary to ensure the effective application of the relevant legal provisions. The Committee also requests the Government to provide information on the manner in which inspectors are associated with any inquiry on the spot into the causes of accidents with fatal consequences in accordance with Article 19(2) of the Convention.

C087 - Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

The Committee notes the observations of the Confederation of German Employers’ Associations (BDA) and the German Confederation of Trade Unions (DGB), received on 31 August 2021 and referring to the matters addressed below.
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.
In its previous comment, having noted that a complaint had been raised before the Federal Constitutional Court in relation to the 2014 Federal Administrative Court judgment, the Committee requested the Government to provide a copy of the decision of the Federal Constitutional Court, as well as any other pending decision issued by it on the subject. In view of the collision ascertained by the Federal Administrative Court between Article 33(5) of the Basic Law and Article 11 of the ECHR and in light of the persisting need highlighted by the Committee for many years to bring the legislation into full conformity with the Convention with regard to the same aspect, the Committee once again requested the Government to: (i) refrain, pending the relevant decision of the Federal Constitutional Court, from imposing disciplinary sanctions against civil servants not exercising authority in the name of the State (such as teachers, postal workers and railway employees) who participate in peaceful strikes; and (ii) to engage in a comprehensive national dialogue with representative organizations in the public service with a view to finding possible ways of aligning the legislation with the Convention.
The Committee notes the Government’s indication that in its decision of 12 June 2018 (Case No. 2 BvR 1738/12), the Federal Constitutional Court held, contrary to the 2014 judgment of the Federal Administrative Court, that: (i) for civil servants, irrespective of their duties, the strike ban amounts to an independent traditional principle of the career civil service system (Berufsbeamtentum) within the meaning of Article 33(5) of the Basic Law, which justifies an overriding of freedom of association; (ii) this is closely linked to the civil service principle of alimentation (Alimentationsprinzip), according to which civil servants are paid salary commensurate with the civil service position, and also to the duty of loyalty, the principle of lifetime employment and the principle that the legal relationship under civil service law (including remuneration) must be regulated by the legislature; (iii) there is no need for an express legal provision concerning a strike ban for civil servants; (iv) the strike ban for civil servants in Germany is consistent with the principle of interpreting the Basic Law in a manner compatible with international law, as well as with guarantees of the ECHR, as there is no identifiable conflict between German law and Article 11 of the ECHR; and (v) regardless of the question of whether the strike ban for civil servants actually represents an encroachment on Article 11(1) of the ECHR, it would in any case be justified either under the first or the second sentence of Article 11(2) based on the particularities of the German system of the career civil service. The Committee further observes from the text of the ruling that the Federal Constitutional Court opined that: (i) granting the right to strike, even for certain groups of civil servants only, would trigger a chain reaction with regard to the structuring of the civil service, would fundamentally change the system of German civil service law and would interfere with the core of the structural principles guaranteed under Article 33(5) of the Basic Law; (ii) dividing civil servants into groups that have or do not have the right to strike based on their different functions would entail difficulties of distinction that are connected to the concept of public authority and would create a special category of civil servants with the right to strike or civil servants subject to collective agreements, who would be given the possibility of enforcing demands regarding their working conditions through labour dispute measures where applicable, while keeping their civil servant status - this would raise the question to what extent this category of personnel could still be regarded as having the legal status of civil servants; and (iii) to compensate for the civil servants’ lack of possibility to influence their employment conditions by measures of labour dispute, Article 33(5) of the Basic Law affords them, among others, the subjective public right to have the constitutionality of their alimentation reviewed in court, which would be almost completely meaningless if civil servants had the right to strike. The Government adds that proceedings against the strike ban for civil servants are currently ongoing before the European Court of Human Rights.
The Committee notes the observations of the BDA in this respect, pointing to the 2018 decision of the Federal Constitutional Court and indicating that although the concept of freedom of association also includes the right to industrial action (strike and lock-out), this Convention and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98) do not regulate or expressly provide for a right to strike. According to the BDA, the manner in which industrial action is organized in practice is always regulated in line with the particular Conventions but at the national level. The Committee also notes the observations of the DGB, claiming that there should be no absolute exclusion of civil servants from the right to strike irrespective of their duties and that a strike ban based on status, as established by the Federal Constitutional Court, represents a hindrance to any practical concordance between Articles 9(3) and 33 of the Basic Law. The DGB argues that a genuine balancing exercise would mean that the strike ban can only remain in place for those officials who genuinely exercise the sovereignty of the State and that civil servants who do not genuinely exercise the sovereignty of the State must benefit from the right to strike to preserve and promote their employment conditions.
The Committee takes due note of the ruling of the Federal Constitutional Court that for civil servants, irrespective of their duties, the strike ban amounts to an independent traditional principle of the career civil service system within the meaning of section 33(5) of the Basic Law, which justifies an overriding of freedom of association. Moreover, the Committee wishes to make clear that its task is not to judge the validity of the Court decision of 12 June 2018 (Case No. 2 BvR 1738/12), which is based upon issues of German national law and precedents. The Committee’s task is to examine the outcome of this decision on the recognition and exercise of the workers’ fundamental right to freedom of association. In this regard, 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.
The Committee previously noted with interest that, in relation to the 2012 DGB observations denouncing the lack of a general prohibition of the use in non-essential services of temporary workers as strike breakers, national legislation had been amended to ensure that the receiver was no longer allowed to hire agency workers as strike breakers (according to section 11(5) of the Manpower Provision Act, in effect from 1 April 2017, the receiver shall not allow agency workers to work if the business is directly involved in a labour dispute). The Committee notes with interest the Government’s indication in this respect that: (i) the deployment of agency workers in industries affected by industrial action is only possible if there is an assurance that they will not take over the jobs of those on strike, either directly or indirectly; (ii) a constitutional complaint against this provision had been brought before the Federal Constitutional Court, claiming that there was a breach of the employer’s freedom of association in that its defences (specifically the use of agency workers during industrial action) were being illegitimately constrained, amounting to undue interference in the ability to carry out a profession; and (iii) in its decision of 19 June 2020 (Case No. 1 BvR 842/17), the Federal Constitutional Court found that the regulation concerned was constitutional and the applicant’s rights had not been infringed.

C098 - Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

The Committee notes the observations of the Confederation of German Employers’ Associations (BDA) and the German Confederation of Trade Unions (DGB), received on 31 August 2021, which mainly relate to matters examined by the Committee under the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).
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.
In its previous comment, having noted that a complaint had been raised before the Federal Constitutional Court in relation to the 2014 Federal Administrative Court judgment, the Committee requested the Government to provide a copy of the decision of the Federal Constitutional Court, as well as any other pending decision issued by it on the subject. It also requested the Government once again to engage in a comprehensive national dialogue with representative organizations in the public service with a view to exploring innovative solutions and possible ways in which the current system could be developed so as to effectively recognize the right to collective bargaining of public servants who are not engaged in the administration of the State, including for instance, as indicated by the BDA, by differentiating between areas of genuinely sovereign domains and areas where the unilateral regulatory power of the employer could be restricted to extend the participation of representative organizations in the public service.
The Committee notes the Government’s indication that in its decision of 12 June 2018 (Case No. 2 BvR 1738/12) the Federal Constitutional Court held that: (i) the universal freedom of association derived from article 9(3) of the Basic Law does not contain exclusions for specific professions and therefore applies unconditionally not only to public sector workers but also to civil servants; (ii) this does not mean, however, that any restrictions to freedom of association are automatically excluded, as even fundamental rights may be restricted as a result of conflicting third-party rights and other rights with constitutional status; (iii) the traditional principle of the career civil service system guaranteed by article 33(5) of the Basic Law amounts to one such restriction with constitutional status; (iv) the ban on the involvement of civil servants in collective bargaining is closely linked to the duty of loyalty, the principle of lifetime employment and the civil service principle of alimentation (Alimentationsprinzip), which requires employers to provide civil servants and their families with reasonable lifetime remuneration and a standard of living corresponding to their seniority, the level of responsibility associated with their office and the relevance of the career civil service to the general public, in line with economic and financial growth in general; (v) the entirely objective guarantee of a reasonable standard of living under article 33(5) of the Basic Law establishes an individual right each civil servant holds vis-à-vis the State, equivalent to a fundamental right, to have the constitutionality of their alimentation reviewed in court; and (vi) the ban on civil servants taking part in collective bargaining thus follows from the traditional principle of the career civil service system but the individual right nevertheless enables those affected to uphold their constitutional status (including in court) and to enforce the obligation of the employer to provide reasonable remuneration. The Government adds that proceedings are currently ongoing before the European Court of Human Rights relating to the strike ban for civil servants examined by the Committee under Convention No. 87.
The Committee notes the observations of the DGB in this respect, pointing to the 2018 decision of the Federal Constitutional Court and asserting that the principle of alimentation applicable to the individual civil servant creates a direct right to be paid commensurate with their position and having to enforce this claim in court in case of infringement is not compatible with this principle, especially considering that proceedings before administrative courts are so protracted that it is not reasonable to expect the person affected to take legal action.
The Committee takes due note of the 2018 ruling of the Federal Constitutional Court. The Committee observes that it results in a ban on the involvement of all civil servants in collective bargaining. 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. 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 exploring innovative solutions and possible ways in which the current system could be developed so as to effectively recognize the right to collective bargaining of public servants who are not engaged in the administration of the State, including for instance, as previously indicated by the BDA, by differentiating between areas of genuinely sovereign domains and areas where the unilateral regulatory power of the employer could be restricted to extend the participation of representative organizations in the public service. Further noting that proceedings are currently ongoing before the European Court of Human Rights in relation to the ban on the right to strike of civil servants and observing that it may also have repercussions on the right of civil servants to bargain collectively, the Committee requests the Government to provide information on the resulting decision and on any impact it may have at the national level.

C122 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

The Committee takes note of the additional 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 and on the basis of the information at its disposal in 2019.
The Committee also notes the observations of the German Confederation of Trade Unions (DGB) received on 30 September 2019, as well as the additional observations of the DGB received on 28 October 2020
Articles 1, 2 and 3 of the Convention. Implementation of an active employment policy. Employment trends and the impact of the COVID-19 pandemic. In its previous comments, the Committee requested the Government to provide information on the impact of active employment measures adopted to promote full, productive and sustainable employment opportunities, including for young persons, particularly those between 20 and 25 years of age. The Committee notes the legislation adopted during the reporting period, in particular the Bridge Part-Time Work Act of 11 December 2018 on Further Development of Part-Time Employment Law and the Act for the Promotion of Vocational Further Education in Structural Change and the Further Development of Educational Support of 20 May 2020. The Committee further notes the information provided, by both the Government and the DGB, on the serious social and economic impact of the COVID-19 pandemic on the German labour market. The Government indicates that, prior to the pandemic, the unemployment rate was at its lowest since the Reunification of the country. However, the pandemic has left deep marks on the German labour market and eroded the positive developments of recent years. The Committee notes that, during the pandemic, “Kurzarbeit” (shorter working hours arrangements) have reached a historically unprecedented level, with six million workers on shorter hours. In April 2020, 20 per cent of workers covered by mandatory social insurance across all sectors were drawing short-time allowances. The COVID-19 crisis has led to an increase in unemployment of about 620,000 persons between March and August 2020. The Committee notes with interest the series of measures taken by the Government to mitigate the impact of the pandemic on the labour market. A large range of support programmes and services, such as professional integration, career advice, vocational education and training (VET) courses, integration allowances, start-up grants and short time allowances, have been provided for those at risk of unemployment or already unemployed, as well as for young people at the beginning of their working lives. The Government has also taken measures to mitigate the negative impact of the pandemic on VET, in particular, through the approval and funding of the “Securing Apprenticeships” programme in 2020, which seeks to maintain training places and apprenticeships to give young people future employment prospects. The Government also refers to the development of a National Training Strategy (NTS), 2019, which is designed to prepare both individuals and society for structural changes and new challenges such as automation and digitalization. The Committee notes that in the framework of the NTS, an innovation competition, “Digital Platform Vocational Training (INVITE)” was launched in April 2020, to promote greater use of digitalization opportunities for future learning. Moreover, the Committee notes that labour market equality officers are present at all institutional levels to assist the administration of the particular federal agency (employment agencies, job centres, regional directorates and the head office of the Federal Employment Agency) in achieving the objectives of equal treatment of women and men. The Committee invites the Government to continue to provide updated information in its next report on the impacts of the global COVID-19 pandemic on the application of the Convention, including the challenges encountered and lessons learned. In particular, the Committee invites the Government to provide information on the effects of the measures taken to mitigate the impact of the pandemic. In this regard, the Committee requests statistical information on the impact of these measures in minimising the adverse impact of the pandemic on the Government’s policies for employment, unemployment, underemployment.
Employment services. The DGB observes that the Skilled Workers Immigration Law, which came into force on 1 March 2020, targets and manages the migration of skilled workers from non-European countries who seek to access the German labour market. The market is open to unregulated domestic or foreign private agencies, which often recruit workers in return for a fee and assign them to work in Germany. The DGB maintains that it is aware of numerous cases of abuse in the context of private work placements, not least by private recruitment agents based abroad, who operate without supervision and should be subject to certification. In light of the observations of the DGB, the Committee requests the Government to provide detailed information on any measures taken or envisaged, in consultation with the social partners, to regulate the activities of private recruitment agencies operating on German territory. In this regard, the Committee invites the Government to consider the possibility of ratifying the Private Employment Agencies Convention, 1997 (No. 181).
Long-term unemployment. The Committee previously requested the Government to provide information on the measures undertaken to help long-term unemployed persons to obtain lasting employment and to provide information regarding the impact of the “Open opportunities – secure social participation” programme. The Committee notes the Government’s indication that, in 2018, the number of long-term unemployed fell by 320,000 persons. In this respect, the Committee notes the series of measures taken by the Government to reduce long-term unemployment, including the “MitArbeit” (Cooperation) programme, developed to help the long-term unemployed into work through a holistic programme of intensive support, individual advice and effective funding, while at the same time offering them concrete employment opportunities. The Government further indicates that the Act on the Flexibilization of the Transition from Working Life to Retirement, and the Strengthening of Prevention and Rehabilitation in Working Life (Flexi-Pensions Act) of 8 December 2016 offers older workers the possibility of taking their full pension early or taking a partial pension and combining it with part-time work. The Committee requests the Government to continue to provide detailed updated information, including statistical data disaggregated by age and sex, on the nature and impact of measures taken to reduce long-term unemployment.
Young persons. In response to its previous comments, the Committee notes the statistics provided by the Government on youth unemployment. In particular, it notes that the unemployment rate among young people has increased following the outbreak of the COVID-19 pandemic, from 4.2 per cent in June 2019 to 6.3 per cent in July 2020. The DGB observes that, in 2019, 14.2 per cent of young workers (aged under 25) were working under temporary employment contracts, many of which ended during the pandemic, increasing youth unemployment. The Government refers to a series of measures aimed at supporting vocational training, apprenticeship and employment of young people. The Committee notes the impact of the “Future Starter” [Zukunftsstarter] initiative, which, during the reporting period, has given approximately 100 000 young adults (25 to 35) the opportunity to take up a first apprenticeship or to complete a vocational qualification. The Committee further notes various measures taken by the Government to promote youth employment, including for young persons with disabilities and disadvantaged youth. In this regard, the Government indicates that comprehensive and flexible labour market support schemes have continued to be available during the reporting period, supported by a high volume of funding in the Federal Employment Agency’s budget to support young people with disabilities and assist them in accessing vocational apprenticeships. The Government refers to the activities of the “youth employment agencies”, collaborative structures designed to promote cooperation between employment agencies, job centres and youth support providers to more effectively reach disadvantaged young people. In this regard, the Committee notes the creation of the “youth employment agencies service point”, an exchange and support structure for youth employment agencies, based at the Institute for Vocational Training (BIBB). It further notes the development of the “YouConnect” project, which aims to provide customized, ongoing support and funding for the vocational training of people with learning difficulties, or those who are socially disadvantaged. The Committee requests the Government to continue to provide updated detailed information on the impact of measures taken or envisaged to tackle youth unemployment, especially in the context of the current pandemic, as well as information, including statistical data disaggregated by age and sex, on the impact of the measures on young persons’ access to lasting employment, including young persons with disabilities and disadvantaged youth.
Refugees. In its previous comments, the Committee requested the Government to provide detailed information, including statistics, on the outcome of the measures taken to integrate refugees into the labour market. The DGB observes that no other group of workers has been as severely affected by the pandemic as migrants and refugees. In June 2020, the number of unemployed foreign passport holders had risen by some 37 per cent compared with the previous year (25 per cent in the case of Germans). Many refugees, for whom employment or an apprenticeship is the main condition for remaining in Germany, have been affected by massive redundancies that have aggravated their already threatening situation. The Government indicates that numerous legislative amendments have been introduced and various measures have been taken to facilitate social and economic integration of refugees in the labour market. These measures include acceleration of the asylum process, expanded German language and integration courses, assessment of professional qualifications, funding programmes and recognition of previous informal and formal qualifications of asylum seekers. The Committee notes that in 2018 the number of refugees in vocational apprenticeships increased by 16 000 persons compared to 2017 and that the overall employment rate of refugee workers has more than doubled since 2016 (14.5 per cent), reaching 34.4 per cent in April 2020. The Committee notes, however, that since June 2019 the number of refugees seeking work has fallen from 490,000 to 455,000 persons and the number of unemployed refugees has increased slightly, from 181,000 to 196,000. The Government indicates that research for the period covering October 2017 to March 2021 will be conducted to assess progress in relation to the integration of refugees into the labour market. The Committee requests the Government to provide information on the measures taken to mitigate the impact of the pandemic and to improve the labour market situation, in particular for those groups and individuals that encounter difficulties in entering and remaining in the labour market and who may have been made vulnerable by the outbreak, in particular, refugees. The Government is further requested to keep the Office informed of the results of the impact assessment research on the integration of refugees into the German labour market and to provide a copy of it once it has been finalized.
“Mini-jobs.” Temporary agency workers. In response to the Committee’s previous comments, the Government indicates that, over the last four years, the share of mini-jobs has declined. However, the DGB observes that, in June 2019, there were approximately 7.6 million people in marginal employment in Germany and one in five self-employed workers was in a “mini-job”. The number of mini-jobs grew approximately 43 per cent between June 2003 and June 2018. In addition, in the first two months of the COVID-19 crisis, 415,000 mini-jobs disappeared. Of these, 250,000 represented people exclusively in marginal employment, a majority of whom were women. Those in mini-jobs have no entitlement to unemployment benefit or to short-time allowances. The DGB further observes that, since May 2020, there has been a slight increase in the number of mini-jobs. Demands are growing to consolidate and expand mini-jobs by increasing the €450 monthly income limit. The DGB considers that any such measure would further undermine the social security system. The Government indicates that to remove the burden of social insurance contributions from low-income earners, the amount of their contribution has been decreased. The Committee notes that the Government is undertaking an impact assessment of the reform of the Temporary Employment Act of 2017 to enable itself to assess the Act’s impact on the mini-jobs market. The Committee invites the Government to provide updated information on the impact of measures developed and implemented, in consultation with the social partners, to promote lasting employment for and improve the situation of “mini-job” workers. It further requests the Government to provide information on the conclusions of the impact assessment of the Temporary Employment Act of 2017.

C135 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

The Committee notes the observations of the German Trade Union Federation (DGB) received on 31 August 2021, alleging gaps in the protection of workers’ representatives, in particular with respect to attempts at preventing works council ballots. The Committee notes that the DGB points to the adoption of the Works Council Modernization Act, 2021, amending the Works Constitution Act, 2001, which governs the establishment and functioning of works councils and alleges that while some improvements have been made in the legislation, gaps remain both in matters of protection of workers’ representatives and the applicable sanctions. The Committee further notes the Government’s indication that the Works Constitution Act and the European Works Councils Act have been amended as a result of new laws adopted between 2016 and 2020, but observes that the Government does not refer to the Works Council Modernization Act mentioned by the DGB. In line with the above, the Committee requests the Government to provide its reply to the DGB observations and to indicate the amendments made to the relevant national legislation, whether the Works Constitution Act or other laws giving effect to the guarantees of the Convention, as a result of the Works Council Modernization Act, 2021 and, in particular, to clarify the effect of these amendments on the rights guaranteed by the Convention.
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