Working Paper No. 304 - International Labour Organization
Working Paper No. 304Non-standard workingin the public servicein Germany and theUnited KingdomMalcolm SargeantHolger SutschetSectoral Policies DepartmentInternational Labour Office4, route des Morillons,CH-1211 Geneva, SwitzerlandSectoralPoliciesDepartment
WP 304Non-standard working in public services inGermany and the United KingdomMalcolm Sargeant and Holger SutschetWorking papers are preliminary documents circulated to stimulatediscussion and obtain commentsInternational Labour OfficeGeneva
Copyright International Labour Organization 2015First published 2015Publications of the International Labour Office enjoy copyright under Protocol 2 of the Universal CopyrightConvention. Nevertheless, short excerpts from them may be reproduced without authorization, on condition thatthe source is indicated. For rights of reproduction or translation, application should be made to ILO Publications(Rights and Permissions), International Labour Office, CH-1211 Geneva 22, Switzerland. The InternationalLabour Office welcomes such applications.Libraries, institutions and other users registered with reproduction rights organizations may make copies inaccordance with the licences issued to them for this purpose. Visit www.ifrro.org to find the reproduction rightsorganization in your country.ILO Cataloguing in Publication DataMalcolm Sargeant and Holger SutschetNon-standard working in public services in Germany and the United Kingdom/ Malcolm Sargeant and HolgerSutschet; International Labour Office, Sectoral Activities Department. - Geneva: ILO, 2015(Sectoral Activities working paper ; No. 304)ISBN: 978-92-2-129093-3 (web pdf)International Labour Office Sectoral Activities Dept.precarious employment / government / civil servant / public administration / working conditions / social dialogue /collective bargaining / role of ILO / Germany / UK13.01.3The designations employed in ILO publications, which are in conformity with United Nations practice, and thepresentation of material therein do not imply the expression of any opinion whatsoever on the part of theInternational Labour Office concerning the legal status of any country, area or territory or of its authorities, orconcerning the delimitation of its frontiers.The responsibility for opinions expressed in signed articles, studies and other contributions rests solely with theirauthors, and publication does not constitute an endorsement by the International Labour Office of the opinionsexpressed in them.Reference to names of firms and commercial products and processes does not imply their endorsement by theInternational Labour Office, and any failure to mention a particular firm, commercial product or process is not asign of disapproval.ILO publications and electronic products can be obtained through major booksellers or ILO local offices in manycountries, or direct from ILO Publications, International Labour Office, CH-1211 Geneva 22, Switzerland.Catalogues or lists of new publications are available free of charge from the above address, or by email:pubvente@ilo.org.Visit our web site: www.ilo.org/publns.Printed by the International Labour Office, Geneva, Switzerland
ContentsContents. iiiList of Acronyms . ivPreface . viIntroduction . 7Scope of the study . 7Key messages . 8About the Authors . 8Part A. Germany . 9The German Public Sector . 9Two types of working relationships . 10Modern Trends Relating to Non-standard Work in the German Public Sector . 11Major Issues in Terms of Job Quality and Security . 16Trade Unions and Non-standard Work . 17Challenges to freedom of association and the right to collective bargaining . 18Other Forms of Social Dialogue . 19Issues . 21Possible actions by the ILO, governments and social partners . 22Part B. UK . 24The Civil Service . 25Local government . 28Major Issues in Terms of Job Quality and Security . 30Trade Unions and Non-standard work . 31Challenges to freedom of association and the right to collective bargaining . 33Other forms of social dialogue . 35Issues . 35Possible actions by the ILO, governments and social partners . 36References . 38WP 304 - Non-standard working in PS in Germany and the UK.docxiii
List of AcronymsivACASAdvisory, Conciliation and Arbitration Service (United Kingdom)BAFederal Employment Agency (Germany)BBCBritish Broadcasting CorporationBetrVGUndertaking Constitution Act (Germany)BMABritish Medical AssociationCIPDChartered Institute of Personnel and Development (United Kingdom)CSDCivil Service Department (United Kingdom)dbbCivil Service Federation (Germany)DEDepartment of Education (United Kingdom)DestatisFederal Office of Statistics (Germany)DGBGerman Trade Union FederationDGUVAccident fund of the federal government (Germany)DHDepartment of Health (United Kingdom)ECHREuropean Court of Human RightsECJEuropean Court of JusticeEPSUEuropean Public Services UnionEurofoundEuropean Foundation for the Improvement of Living and WorkingConditionsFDAFirst Division Association (United Kingdom)GEWEducation and Science Workers' Union (Germany)GEWTrade Union of Education and Science (Germany)GPRUnion of General Staff for the State of Bremen and the City of Bremen(Germany)ILOInternational Labour OfficeNHSNational Health Service (United Kingdom)NASUWTNational Association of Schoolmasters Union of Women Teachers(United Kingdom)NUTNational Union of Teachers (United Kingdom)WP 304 - Non-standard working in PS in Germany and the UK.docx
ONSOffice for National Statistics (United Kingdom)ÖTVTrade Union Public Sectors, Transport, Traffic (Germany)PCSPublic and Commercial Service Union (United Kingdom)SACPScottish Affairs Committee of the Parliament (United Kingdom)TdLCollective agreement for the federal states (Germany)TUCTrade Union Centre (United Kingdom)TVöDCollective Agreement for the Public Sector (Germany)UCUUniversity and College Union (United Kingdom)UNISONPublic sector trade union (United Kingdom)WP 304 - Non-standard working in PS in Germany and the UK.docxv
PrefaceOne of the complex challenges associated with the employment relationship is toimprove the working conditions of non-standard workers, whose numbers have grownsignificantly through different uses of contractual arrangements, and who are consideredmore vulnerable in labour markets than those who are in standard work arrangements. TheSectoral Policies Department (SECTOR) is pleased to present a series of country studieson non-standard work in the public service, as part of its strategy to advance the study ofchanging employment relations. Drawing on the Conclusions of the Recurrent Discussionson Fundamental Principles and Rights at Work adopted by the ILC in 2012, SECTOR hascompiled examples from various regions on trends in non-standard work arrangements, toincrease understanding of their impact on Decent Work objectives and identify solutions asappropriate.As a result of the most recent developments in budget constraints due to publicservice reform and changes in human resource management in public administrations, agrowing number of tasks have been performed through non-standard workingarrangements. The ILO’s Committee of Experts on the Application of Conventions andrecommendations, in its 2013 General Survey on Conventions No. 151 and 154, expressedconcerns regarding trends in labour relations in the public service, like the extension ofcontracts ruled by private sector labour law; the admission of temporary public servants,agency workers, or regular workers on a non-permanent recurrent basis or working parttime; and the use of civil or administrative contracts to provide services specific to publicadministration. The Committee warned of potentially negative repercussions for theindependence of public servants and for compliance with constitutional requirements forthe recruitment of civil servants.In response to the General Survey, the Committee of Application of Standards of the102nd International Labour Conference (2013) underscored that collective bargaining in thepublic service can maximize the impact of the response to the needs of the real economy,particularly during times of economic crisis, and contribute to just and equitable workingconditions, harmonious relations at the workplace and social peace. It can ensure anefficient public administration by facilitating adaptation to economic and technologicalchanges, and the needs of administrative management. The Committee encouraged theOffice to provide support for capacity-building and assistance mechanisms to promote theratification and full implementation of Conventions Nos. 151 and 154.This series seeks to shed light on this phenomenon and strengthen the understandingof collective bargaining in challenging situations. We hope that the ILO’s staff andconstituents will find it useful in devising future policy initiatives.Alette van LeurDirectorSectoral Policies DepartmentviWP 304 - Non-standard working in PS in Germany and the UK.docx
IntroductionThere is an extensive literature on non-standard work and vulnerable workers.However, as noted in the report prepared for the February 2015 ILO Meeting of Experts onNon-Standard Forms of Employment (NSFE),1 there is no official definition of this kind ofemployment. The report states that, typically, “NSFE covers work that falls outside thescope of a standard employment relationship, which itself is understood as being work thatis full-time, indefinite employment in a subordinate employment relationship.” For thepurpose of the discussion at the Experts’ Meeting, the report considered the followingforms of non-standard employment: (1) temporary employment; (2) temporary agencywork and other contractual arrangements involving multiple parties; (3) ambiguousemployment relationships; and (4) part-time employment. This paper examines nonstandard work especially as it concerns examples of vulnerable low paid workers, womenworkers, migrant workers, young workers and others, including those that have attained alow educational level.2 The concepts of non-standard working and vulnerable workers arelinked because the jobs done by vulnerable workers are often part time, low paid andcontingent. In this report we mention the low pay of many government workers (Unite2014) and the many public sector jobs that have been outsourced to the private sector.The ILO has shown its interest in this field and a concern with the influence of tradeunions and social dialogue in maintaining standards in the sector (Ebisui, 2012). ILO workhas also shown, however, that there has been a decline in the quality of work in manyadvanced economies. Between 2007 and 2010 part time employment and temporaryemployment increased in both Germany and the UK. The concern, however, is really withinvoluntary part time and temporary work arrangements, which becomes work of a nonstandard nature. Indeed for the EU as a whole involuntary participation in this type of workhas increased (ILO 2012). The ILO reports that, between 2007 and 2010, involuntary workarrangements of this nature increased considerably in the UK, but actually decreased inGermany. There is also evidence that pay is lower for part time and temporary workersthan for standard workers (ILO 2008a).Scope of the studyThis paper is focused on those employed in the central civil service and thoseemployed in local and regional government in Germany and the UK. There are largenumbers of public service employees who have not been specifically covered in this report,e.g. teachers and National Health Service (NHS) workers, although where possible wehave given examples of the impact in specific parts of the sector. The same issues apply tostate employees and outsourced employees as do apply to civil servants. In this sense it isclear that civil servants are as susceptible to the effects of policy changes as those in theprivate sector.1ILO: Non-Standard forms of employment, Report for discussion at the Meeting of Experts onNon-Standard Forms of Employment, Geneva, 16-19 February 2015. The report is available at:http://www.ilo.org/wcmsp5/groups/public/---ed ment/wcms 336934.pdf.2Cf., e.g., Sargeant and Ori (eds), 2013; Quinlan, 2012; TUC, undated; Fredman, 2004; Jayaweeraand Anderson, 2008.WP 304 - Non-standard working in PS in Germany and the UK.docx7
Key messagesData: One of the challenges for a study of this kind is the availability of sufficient andaccurate data concerning non-standard working in the public sector. In both Germany andthe UK there appears to be a lack of official statistics apart from information available onpart time working and some information on temporary/casual working, some of which isgendered data. In Germany there is more information available, but this has mostly beenobtained by the use of questions in Parliament. There needs to be more data collected andmade available.Scope of the public sector: The scope of the public sector varies between countries. Bothcountries have been through a lengthy period of outsourcing of public services at nationaland local level which has created uncertainty. In addition, in the UK, there has been aconcerted effort to reduce the numbers of employees in the public sector, to reduce costsand to assist the private sector to expand into areas previously considered the preservice ofthe public sector.Industrial relations: The industrial relations structure in German and the UK are verydifferent, yet the levels of collective agreement in both countries remain high. Thecontinued outsourcing of public sector work is likely to remove workers from collectiveagreement coverage.Reduction of the public sector: Outsourcing is just one aspect of a policy, especially in theUK, to reduce the size of the public sector and this presents major challenges to thecontinued inclusion in collective agreements of outsourced workers and also those thatremain.About the AuthorsMalcolm Sargeant is Professor of Labour Law, Middlesex University BusinessSchool, London, UK. He co-edited the 2013 book Non-standard work and vulnerableworkers.Prof. Dr. Holger Sutschet, Osnabrück is Professor of International Commercial Law,Labour Law and Comparative Law at the University of Applied Sciences Osnabrück,Germany, and Visiting Professor at Brunel University London, UK.All comments and the report as a whole are the responsibility of Professor MalcolmSargeant.8WP 304 - Non-standard working in PS in Germany and the UK.docx
Part A. Germany41.61 million people in Germany are employed or self-employed; 28.92 millionpeople are employees (BA 2013). Available statistics regarding the development ofatypical work do not distinguish between the public and the private sector.Table A.1. Atypical Work in the German Labour Market mployees31 38630 95830 36130 12430 03929 74629 35029 22729 67829 86229 94129 67029 13328 61328 99229 74730 33830 82530 75531 07631 76532 124Normal26 94826 36825 92725 55025 18524 76024 11923 80023 72723 85023 82823 62022 90322 43622 13822 17322 55422 98123 05723 13123 72824 232p/t 20 hrs1 7511 6491 7071 7341 6721 5861 6281 6531 6741 7201 8011 8181 8241 8681 9792 2782 3092 3822 4862 5712 6472 763Atypical4 4374 5894 4344 5754 8544 9865 2315 4265 9516 0126 1146 0506 2296 1776 8547 5747 7857 8457 6997 9458 0377 891Fixed term1 9682 0041 7921 8671 9861 8971 9552 0212 3022 2652 2122 0522 0692 0512 4982 7252 7522 8272 7342 8582 9052 735Part-time2 5552 6882 7672 8563 0263 1883 3923 5353 8343 9444 1274 2214 4074 3764 6734 8614 9464 9204 9154 9425 0445 017Minimal6546706496467501 0981 3101 5071 7441 7491 8161 8521 9431 9712 4162 6612 7662 5782 5742 5172 6722 548Agency work563616636560743778745Source: Destatis 2014b.The number of fixed term and part time employees in the public and private healthand care sector has risen over the past years (Datheet al. 2011). In 1996, 54% ofemployment contracts were permanent full-time; by 2008, the percentage had declined to39. Part-time contracts had increased from 19 to 25 per cent and fixed term part-timecontracts, from 5 to 10 per cent.The German Public SectorDetailed information on employees in the German public sector is available via thegovernmental institute for statistical data (Statistisches Bundesamt). Its most recentpublication on this topic was published in 2014.Employers in the public sector can be the German state; one of the German federalstates; local authorities; and national insurance. The main areas in which employees of thepublic sector perform their work are general administration, education, child care andhealth and care.WP 304 - Non-standard working in PS in Germany and the UK.docx9
Table A.2. Number of employees (including civil servants) in the public sectors: total, full-time(F/T) and Part-time (P/T), 30 June 2012 778.685.5269.567.8152.157.3117.489.1Source: Federal Office of Statistics 2012, at 17.Table A.3. Number of employees only (excluding civil servants) over all sectors 4.9 1359.8 1,105.11,364.2 248.3 1,115.9Pct. female44.881.7Source: Id. at 16.These tables show two distinct characteristics. First, part-
UCU University and College Union (United Kingdom) UNISON Public sector trade union (United Kingdom) . the admission of temporary public servants, agency workers, or regular workers on a non-permanent recurrent basis or working part- . 2014) and the many public sector jobs that have been outsourced to the private sector.
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