Direct Request (CEACR) - adopted 2005, published 95th ILC session (2006)

Part IV (Unemployment benefit) of the Convention. (a) Article 20 (in conjunction with Article 69). The Committee refers to comments that it has been making since 1998 in relation to the application of Part IV (Unemployment benefit) of the European Code of Social Security, which contains similar provisions. The Committee considered 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) to be, in certain respects, more restrictive than those derived from the definition of the contingency contained in Article 20 of the Code/Convention, as the suitability of employment offered 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. Under the terms of section 121(5), employment shall not be deemed unsuitable merely because it does not involve an occupation for which the worker has been trained or which the worker has exercised. The rules (Durchführungsanweisungen) for the implementation of section 121 emphasize that "this provision does not allow for any special protection of an applicant’s normal occupation. The applicant’s training and skills shall be taken into consideration for the purpose of deciding upon suitability only in so far as they are reflected in the remuneration on which the applicant’s unemployment benefit is based". The Committee pointed out that these provisions may have the effect of depriving unemployed persons of the possibility of protecting their acquired occupation and skills from unsuitable job offers during the initial period of unemployment under the threat of losing their unemployment benefit, as well as undermining the responsibility of employment offices for providing better placement, counselling and vocational training services to enable the unemployed to obtain employment that is suitable for their skills and experience. For these reasons, the Government has been asked to reconsider the situation, taking into account its general responsibility under Articles 70(3) and 71(2) of the Code (Articles 71(3) and 72(2) of the Convention) for the proper administration of employment services and the due provision of unemployment benefit in all cases covered by Article 20 of the Code/Convention during the period fixed by Article 24.

In its thirty-third annual report on the Code in 2004, the Government stated that the placement and integration efforts of the employment agencies are first and foremost aimed at reintegrating unemployed persons into working life in line with their professional qualifications and personal interests. However, if such integration turns out to be impossible, the community of insured persons (who finance the unemployment insurance scheme in Germany by means of their contributions) may expect that an unemployed person also accept other jobs that are offered on the labour market. Any other policy leads to a situation in which unemployment would take precedence over (possible and acceptable) employment and would thus contradict the legally enshrined precedence of placement into employment over the receipt of wage replacement benefits (section 4 of Book III of the Social Code). Accordingly, German employment services have made increased efforts over the last few years to promote the willingness required on the part of unemployed persons to participate and make adjustments in the context of their reintegration into working life, and they have also taken measures to enforce this aim.

The Committee notes this information. It wishes to point out that the principle of precedence of active placement into employment over passive handout of wage replacement benefits is inherent in the definition of the contingency given in Article 20 of the Convention, which arises only in situations of inability to obtain or be placed into suitable employment. The need to coordinate the system of protection against unemployment with the employment policy and the provision of benefits with the work of the placement services is expressly recognized by the international social security law, which requires, in particular, that the methods of providing unemployment benefit should be such as to contribute to the promotion of full employment as a priority objective, while avoiding creating disincentives either to work or to employment creation (Convention No. 168, Articles 2, 7 and 14). The difference between these provisions of the European and international social security standards and the same principle of precedence of placement over benefit handouts, as it is enshrined in German legislation, consists in that the latter admits placement in any possible and acceptable, but not necessarily suitable, employment, while the former provides for a limited period of protection of the acquired occupation and skills of the unemployed from the unsuitable job offers. The Committee also draws attention to the discrepancy between German law, which has formally abolished the time-limited protection of the occupation and skills of the unemployed, and the placement practices of employment agencies, which is still aimed at reintegrating unemployed persons in line with their professional qualifications. In the view of the Committee, this discrepancy may be overcome through better coordination between the provision of the benefit and the placement services on the basis of the internationally recognized criteria for assessing the suitability of employment offered. Taking into account that such coordination falls under the general responsibility of the State for the proper administration of the employment service and the due provision of the unemployment benefit under Articles 71(3) and 72(2) of the Convention, the Committee would like the Federal Employment Agency to be asked to consider issuing a special circular letter to its employment offices reminding them of the country’s obligations under the Convention and the Code to enable unemployed persons to obtain suitable employment and not to apply sanctions for refusing to accept unsuitable job offers at least during the initial period of the unemployment benefit.

(b) Suspension of benefit. Article 69(h). The Committee takes note from the thirty-third annual report on the Code of the measures aimed at further tightening of the conditions of entitlement to, and disqualification from, unemployment benefit. The report indicates that sanctions for violating insurance principles, which are currently set out in various Regulations with different legal consequences, will now be merged into one consistent regulation entailing one sanction in the form of a period of disqualification up to a maximum of 21 weeks. In case of termination of employment by the claimant or because of his failure to report at a set date, such disqualification periods will henceforth be counted as the benefit period. In 2003, the number of disqualification periods imposed under the Regulations on acceptable work (subsection 4 of section 121, Book IV of the Social Code) and Regulations on disqualification periods (subsection 1 of section 144, Book III of the Social Code) has increased by 2.7 times in comparison with 2002 (from 57,000 to 153,000), as the new Regulations have facilitated enforcement procedures for the employment offices. The entry into force of the Regulation on early reporting duty, which provides for cuts in unemployment benefits if future termination of employment is not reported in due time, has resulted in a greater workload for the bodies of appeal because many unemployed persons were appealing against cuts in benefits. The Government highlights that these Regulations have contributed to making unemployed persons aware that, in the future, a higher degree of self-responsibility will be expected from them when it comes to ending unemployment. The burden of proof for having good reason not to act in accordance with this responsibility now belongs to the unemployed person himself/herself, including in cases of dismissal for gross negligence. In accordance with the principle of "giving support and making demands", higher individual responsibility is accompanied by the "individualized placement concept", according to which employment agencies are legally obliged to draw up a comprehensive jobseeker’s profile, identifying his professional and personal characteristics such as knowledge and skills, qualifications, professional experience, whether his/her knowledge and skills are up to date, whether he/she is able and willing to engage in further training, and what concrete labour market assistance is needed in each individual case. The individual placement strategy resulting from the profiling is laid down in a binding integration agreement, which includes offers to be made by the employment agency and activities required from the unemployed person for a certain period of time. A copy of an integration agreement was included in the Government’s thirty-fourth annual report on the Code in 2005, together with the rules for the implementation of section 144 of Book III of the Social Code, the statistics on disqualification periods imposed according to this section, the number of appeals and court actions for the year 2004, and the compilation of selected rulings of the Federal Social Court defining "gross negligence" and "good reason". The Committee will examine this information at its next session when it will have the necessary translations. In the meantime, it would like the Government to continue to indicate any changes in the national legislation and practice related to the conditions governing entitlement to and suspension of unemployment benefit.

Part VI (Employment injury benefit). Article 36, paragraph 3. The Committee notes with satisfaction that, following the recommendation made in its 2003 conclusions on the application by Germany of the European Code of Social Security, the Government has issued a circular to remind the central association of the statutory occupational accident insurance funds responsible for the application of the Regulations on the conversion of an employment injury pension into a lump-sum payment (sections 76 and 78 of Book VII of the Social Code) of the country’s obligations under Article 36(3) of the Code/Convention, which permits such conversion only in cases where the degree of incapacity is slight or the competent authority is satisfied that the lump sum will be properly utilized, in order to prevent victims of employment injuries from falling into poverty after having inadvertently spent their lump-sum payments.