Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

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

The Committee notes the communications from the International Trade Union Confederation (ITUC) on 31 July 2012, from Travail.Suisse on 24 August 2012 and from the Swiss Federation of Trade Unions (USS/SGB) on 30 August 2012 containing observations on the application of the Convention. It notes the recent Government’s response to this communication and it will examine it in its next reporting cycle.

Articles 1 and 3 of the Convention. Protection against anti-union dismissals. The Committee recalls that its last comments addressed the difference of opinion between the Government and the trade unions on the degree of protection of trade union delegates and representatives against anti-union dismissals. While the trade unions considered that this protection was not adequate on the basis of cases ruled on by courts, the Government maintained that Swiss law offers adequate protection and fully respects the Convention; and that the compensation for unfair dismissal which may amount to as much as six months’ pay is sufficiently dissuasive, given that the great majority of Swiss firms are small and medium-sized enterprises. The Government nevertheless indicated that the Federal Council decided on 16 December 2009 to reconsider the matter of penalties for unfair dismissal, including the dismissal of elected staff representatives, dismissal for membership or non-membership of a trade union or for lawful trade union activity, for the purpose of looking into an increase of the maximum penalty. In September 2010, therefore, the Government was to hold consultations with the social partners on improving protection against unfair dismissals, including dismissal on anti-union grounds. The Committee had welcomed this initiative and asked the Government to indicate the outcome.

The Committee notes the Government’s indication that the said consultation, which ended in January 2011, revealed strongly conflicting opinions on the need to review the Code of Obligations on the issue of protection against dismissals and that the Federal Council must take a policy decision on actions to be taken on the draft review. The Committee also notes the observations of Travail.Suisse and the USS/SGB which confirm that the consultations ended in January 2011, regret the fact that the Federal Council still has not brought this issue before Parliament over a year and a half after public consultation and objects to the continuation of anti-union dismissals. In this regard, the Committee notes the various cases cited by the USS/SGB and the indication that the Federal Court considered, in a recent ruling of 19 March 2012, that an improvement in the protection of workers’ representatives can be implemented only through an amendment to the law.

In these circumstances the Committee is bound to recall its opinion that the applicable compensation for unfair dismissal (up to six months’ wages) may be a deterrent for small and medium-sized enterprises, but that this is not so for high productivity enterprises or large enterprises. The Committee requests the Government to indicate the action taken by the Federal Council to follow up the public consultation on improving protection against unfair dismissals. More generally, and despite the conflicting positions reported, the Committee invites the Government to maintain open tripartite dialogue on the issue of adequate protection against anti-union dismissals in the light of its comments.

Article 4. Promotion of collective bargaining. The Committee notes the latest statistical information available from the Federal Statistics Office on collective agreements concluded in the country and the number of workers covered. The Committee requests the Government to continue to send up-to-date statistical information on the number of collective agreements by sector and the number of workers covered.