Direct Request (CEACR) - adopted 2008, published 98th ILC session (2009)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Switzerland (Ratification: 1975)

The Committee has taken note of the comments made by the Union of Swiss Employers (UPS) and the Swiss Federation of Trade Unions (USS) transmitted by the Government. The Committee notes the comments from the International Trade Union Confederation (ITUC) of 29 August 2008 which refers to issues already raised by the Committee, as well as to obstacles to the exercise of trade union activities. The Committee requests the Government to send its observations on the comments above.

Article 3 of the Convention. In its previous comments, noting that the Ordinance on Confederation Personnel, which entered into force on 1 January 2002, excludes from the right to strike persons exercising authority in the name of the State or providing essential services, the Committee had asked the Government to take the necessary steps to set up procedures for the compensation of persons exercising authority in the name of the State or providing essential services who are deprived of the right to strike. The Committee points out that, according to the Government in its report, a partial revision of the Act on Confederation Personnel is at present being negotiated with the staff associations. However, it specifies that this revision does not concern the compensatory measures referred to by the Committee, and that dialogue on the draft revision of the Act will start in the autumn. The Committee notes that, according to the USS, there have been no negotiations on the revision of the Act, and at the very most a consultation with the trade unions concerned. The Committee can only recall, once again, its position of principle whereby the right to strike is an intrinsic corollary to the right to organize protected by the Convention. Consequently, the right to strike is one of the recognized activities of workers’ organizations within the meaning of Article 3 of the Convention. If this right is restricted or prohibited, workers who are thus deprived of an essential means of defending their socio-economic and occupational interests, should be afforded compensatory guarantees, for example, conciliation and mediation procedures leading, in the event of deadlock, to arbitration machinery seen to be reliable by the parties concerned (see General Survey of 1994 on freedom of association and collective bargaining, paragraphs 149 and 164). The Committee requests the Government to take the necessary steps to ensure that persons exercising authority in the name of the State or providing essential services, who are deprived of the right to strike, might benefit from compensatory guarantees for the settlement of disputes. The Government is encouraged to raise this matter in consultation with the trade union organizations concerned in the context of the process under way to review the Act on Confederation Personnel and to indicate any new developments in this respect.

With regard to the prohibition of the right to strike for public officials of some cantons and the obstacles to the exercise of this right which allegedly exist in some communes, the Committee had noted in its previous comments that the results of consultations with the cantons had been forwarded to a parliamentary committee entrusted with considering an initiative seeking ratification by Switzerland of the European Social Charter. It had recalled that its comments did not seek to obtain recognition of the right to strike for all public employees of the cantons and communes, but only for those who do not exercise authority in the name of the State in the few cantons where this right is still not recognized. The Committee notes that, according to the Government, the parliamentary initiative was set aside on 17 December 2004. Taking into account the Government’s previous replies that it is the responsibility in the first place of the cantons and communes to bring their laws and regulations into conformity with the Constitution which recognizes the lawfulness of strike action in certain circumstances, but recalling that, by virtue of the provisions of the Convention, the prohibition of the right to strike in the public service should be limited to public officials exercising authority in the name of the State, the Committee requests the Government to indicate any consultations, initiatives or measures, at all levels, to bring about recognition of the right to strike for public employees who do not exercise authority in the name of the State in those cantons where this right is still not recognized.

In its previous comments, the Committee had requested the Government to comment, or at least provide information, on any judicial procedures under way or any judgements concerning obstacles to the access of trade union leaders to the workplace. The Committee notes the Government’s reply that the only information at its disposal consists of decisions and judgements officially published, which are therefore open to the public, or cases under examination in which it cannot take a position because of the principle of the separation of powers. The Committee also notes that the USS and ITUC refer once again to this matter in their communications. The Committee recalls that the right, by virtue of Article 3 of the Convention, for workers’ and employers’ organizations to organize their activities in full freedom and formulate their programmes with a view to defending all of the occupational interests of their members, while respecting the law of the land, includes in particular the right to hold trade union meetings, and the right of trade union officers to have access to places of work and to communicate with management (see General Survey, op. cit., paragraph 128). The Committee requests the Government to provide any information, including decisions and judgements, concerning obstacles to the access of trade unions to the workplace.