Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Switzerland (Ratification: 1999)

The Committee notes the Government’s report for the period ending May 2006, which was received at the end of its previous session (November–December 2006) and of which it decided to postpone the examination. The Committee notes that the Government attaches comments by the Union of Swiss Employers (UPS) and the Swiss Federation of Trade Unions (USS). It also notes the comments of the International Confederation of Free Trade Unions (ICFTU, now ITUC – International Trade Union Confederation), dated 12 July and 10 August 2006, which relate to issues that are already under examination. The Committee further notes the discussion in the Committee on the Application of Standards at the 95th Session of the International Labour Conference (June 2006).

Articles 1 and 3 of the Convention. Protection against anti-union dismissals. In its previous observation, the Committee noted the comments of the USS according to which protection against anti-union dismissals is not adequate and its reference to a number of court decisions on this matter. In its statement to the Conference Committee, the Government however indicated that adequate protection did, in practice, exist, and included recourse to the courts against acts of anti-union interference. In its report, the Government emphasizes that: (a) Swiss law provides adequate protection for trade union delegates and representatives, thereby complying fully with the Convention; (b) the current system under Swiss legislation relating to unjustified termination of employment takes into account the fact that compensation which may attain six months’ wages constitutes, particularly in the view of Parliament, a sufficiently dissuasive measure in view of the fact that the great majority of Swiss enterprises are small and medium-sized enterprises; (c) the Parliament did not wish to introduce into Swiss law respecting contracts of employment the principle of the reinstatement of dismissed workers, which is not required by the Convention or the ILO’s supervisory bodies; (d) the principles referred to previously were set out democratically and confirmed by recent parliamentary interventions, and the question does not therefore arise in this context of proposing a legislative amendment establishing additional protection against acts of anti-union discrimination, as it would be doomed in advance to failure and would further increase the parliamentary workload; (e) the courts take into account all objective, and even subjective circumstances in granting compensation to workers, the amount of which is determined equitably; (f) the cases referred to by the USS have all been the subject of regular legal action before the courts and the rights of the parties have been respected, even in the cases in which the parties have agreed upon arrangements on the basis of legal texts; and (g) only five of the 11 cases raised by the USS in its complaint of 14 May 2003 may be considered as valid.

The Government adds in its report that the Federal Council provides detailed explanations of the tripartite negotiations held following the adoption in November 2004 of the interim conclusions of the Committee on Freedom of Association in Case No. 2265. The Tripartite Federal Commission for ILO Affairs examined the case. However, in the absence of agreement, it was not considered necessary for measures to be adopted to strengthen protection against unjustified dismissals on anti-trade union grounds or to make it more effective in practice. However, it is recognized that the discussion on strengthening protection against unjustified dismissals may be pursued in a broader political and democratic context at the national level.

The Government indicates that the parliamentary and democratic channels exist to ensure a serene political debate at the national level (parliamentary interventions and popular initiatives) and accordingly to achieve the objective pursued by the USS of effective protection in practice against unjustified dismissals for anti-trade union reasons. Finally, the Government reports recent changes in the case law respecting penalties against dismissals, which it describes as being more flexible and more favourable to the interests of dismissed workers than described by the USS.

In its comments, the USS observes that it put forward proposals relating to protection against anti-trade union dismissals. These proposals were discussed in November 2005, but were not retained by the Government as they were not accepted by the employers. The USS adds, citing cases, that anti-union practices and dismissals still occur and that judicial practice does not correspond to the criteria for protection against acts of anti-union discrimination set out by the Committee in its 1994 General Survey.

The Committee notes that the Committee on Freedom of Association, in its recommendations when it last examined Case No. 2265 in November 2006, requested the Government to take measures to provide the same protection to trade union representatives who suffer anti-union discrimination as for victims of dismissals that violate the principle of equal treatment for men and women, and it encouraged the continuation of tripartite discussions on the whole matter, including a review of the situation in certain cantons with regard to compensation for anti-union dismissals (see 343rd Report of the Committee on Freedom of Association, paragraph 1148). In these conditions, taking into account the Government’s statement that the debate on reinforcing protection against unjustified dismissals may be pursued in a broader political and democratic context at the national level and noting that it has not been informed, either by the Government or the trade union organization, of developments during the course of 2007 following the conclusions of the Committee on Freedom of Association, the Committee requests the Government to keep it informed of any development towards greater protection against anti-union dismissals and any development in case law respecting the compensation granted for unjustified dismissal for anti-union reasons, including by cantonal courts.

Article 2. Protection against acts of interference. In its previous observation, the Committee noted the misgivings expressed by the USS concerning the establishment of staff associations partially financed by employers and the replacement of unions by staff committees, all at the instigation of employers so as not to have to negotiate with the unions. The Committee notes the Government’s indication in its report that legal procedures allow the social partners to assert their rights. The Government indicates that the courts can penalize acts of interference and order the holding of collective bargaining, and it refers in this respect to a decision of December 2005 of the Collective Labour Relations Chamber of the Canton of Geneva finding in favour of the participation of an enterprise union in collective bargaining. In its comments, the USS expresses the hope that federal case law will develop in the same direction as in the above decision, as views currently differ between cantons on this matter. The Committee requests the Government to keep it informed of developments in case law, including at the cantonal level, on this matter.

Article 4. Promotion of collective bargaining. The Committee noted previously that, according to the USS, collective bargaining in Switzerland is not sufficiently extensive and for years the Swiss Confederation has shown no interest in furthering the implementation of the Convention. The USS also refers to the lack of initiatives by the public authorities to encourage voluntary collective bargaining machinery within the meaning of the Convention. In its latest comments, the USS recalls that, according to the latest federal statistics, the coverage of collective bargaining is declining. It indicates that it has proposed tangible measures to promote collective bargaining and does not understand the Government’s inaction when the majority of enterprises are small and medium-sized and it is materially impossible for trade unions to approach all enterprises that are not affiliated to an employers’ organization, just as it would be impossible to take action in court against all those enterprises refusing to engage in collective bargaining.

The Government provided statistical data for 2003 to the Conference Committee and reported that there were 594 collective agreements in force covering 1,414,000 employees, of whom 36.3 per cent were women. The total proportion of employees covered by collective agreements is 36.7 per cent, according to official figures. Finally, these agreements primarily cover the construction sector (where 66.4 per cent of workers are covered by a collective agreement), industry (40.5 per cent), services (35 per cent) and agriculture (7.2 per cent). In its report, the Government adds that a collective labour agreement can be extended by the federal and cantonal authorities at the request of the parties to the agreement and thereby be made applicable to all employers and workers in an economic branch or occupation, on condition that certain legal requirements are fulfilled.

The Committee notes these indications. It requests the Government to indicate the manner in which the law and case law address abusive practices in relation to collective bargaining (substantiated acts of bad faith, unjustified delay in the holding of negotiations, failure to comply with agreements, etc.), and any measures adopted to promote the broadest development and utilization of machinery for the voluntary negotiation of collective agreements.