Domestic Workers Convention, 2011 (No. 189) - Switzerland (Ratification: 2014)

Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

Articles 1 and 2 of the Convention. Definitions and exclusions. The Committee requested the Government to provide information on the measures taken or envisaged to guarantee that domestic workers in private households enjoy all the forms of protection provided for in the Convention. It notes with interest that in the context of the review of the Act on undeclared work (LTN) in 2018, the term “Arbeitsplatz” in section 7(1)(a) of the German text of the Act was replaced by “Arbeitsort”, in order to indicate that the supervisory authorities may also carry out LTN inspections in private households. It further notes the information provided by the Government on: labour inspection activities and services; complaints mechanisms accessible by domestic workers; action taken against the exploitation of domestic workers; measures taken by the Swiss authorities to protect domestic workers (including “undocumented” domestic workers) from all forms of abuse, harassment and violence. In particular, the Committee notes Action No. 7 of the National Action Plan to Fight Human Trafficking 2017–2020, on raising awareness of labour inspection through the compilation and distribution of information materials, as well as the awareness campaigns conducted by the State Secretariat for Economic Affairs (SECO). Furthermore, the Committee notes the establishment of a website, information leaflets and advice centres for undocumented persons; and the launch of Careinfo (careinfo.ch), a digital platform created with support from the Equality Office of the City of Zurich, to provide information of use to migrant care workers, private households and care services agencies. The Government has also concluded international social security agreements with 50 States to ensure equal treatment for Swiss citizens and citizens of these States and pensions portability, as well as Operation Papyrus, a special initiative launched in Geneva whereby, under certain conditions, the situation of hundreds of irregular migrants, including domestic workers, can be regularized. With regard to the conditions of employment of domestic workers, the Government indicates that, pursuant to Federal Council decision of 27 November 2019, the validity period of the Ordinance on the standard employment contract for workers in the domestic economy (CTT économie domestique), which provides for mandatory minimum wages in accordance with section 360(a) of the Code of Obligations, was extended by a further three years. The extension entered into force on 1 January 2020 and is effective until 31 December 2022. The Government further indicates that minimum wages, adjusted in line with nominal wage trends for the years 2016 to 2018 in accordance with the proposal of the Tripartite Federal Commission, were increased by 1.6 per cent. With regard to the provision of assistance around the clock to elderly persons in private households, the Government indicates that in 2019, a survey was conducted and an initial assessment made concerning the adoption by the cantons of the standard employment contract on 24-hours-a-day care (CTT 24/24). The survey results indicated that the majority of cantons were in the process of adopting the CTT 24/24 and most planned for it to enter into force in 2019/2020. The Committee also notes that the SECO is requested to establish a further assessment for release in early 2022. With regard to the protection of domestic workers, the Government indicates that measures have been taken to ensure that domestic workers in private households are informed of the protections available to them, and that persons requiring assistance are aware of their obligations. In this regard, the Committee notes that in 2021, fact sheets for workers in the domestic economy on the subject of 24-hours-a-day care were published on the SECO website in the three official languages and eight other languages in order to ensure that domestic workers were able to familiarize themselves with their rights. The fact sheet calls on persons requiring assistance and their families to exercise due diligence and envisages the possibility of eventual criminal prosecutions for failure to meet their obligations, including the obligation to verify that private domestic staff placement agencies hold a valid permit. The Committee notes that the coordinating body of the Swiss employment vouchers scheme, which brings together six public utility organizations in French-speaking Switzerland, launched its first awareness-raising campaign in 2020 with a view to regularizing undeclared domestic workers and reminding employers of their legal obligations. Furthermore, the Committee notes the Government’s indications concerning the content and scope of application of the Ordinance on private domestic workers (ODPr). It also notes the statistics provided by the Government on the monitoring carried out in the context of the CTT économie domestique and on the complaints filed for failure to comply with the minimum wage rate in the domestic work sector, including in respect of the situation of private domestic workers of persons benefiting from privileges, immunities and facilities. With regard to fees charged by private employment agencies, the Committee notes the information provided by the Government, including with respect to the audits of private placement agencies conducted by the competent cantonal authorities in the meaning of section 32 of the Federal Act on employment service and service leasing (LSE, RS 823.11). Noting that the Government intends to improve the situation of domestic workers through the existing legal instruments and does not yet envisage introducing a specific law for this category of workers, the Committee requests the Government to continue to provide information on the measures taken or envisaged to ensure that domestic workers in private households enjoy all the forms of protection provided for in the Convention. It also requests the Government to keep the Office informed of any progress in extending the scope of application of the Labour Act (LTr) to domestic workers. It further requests the Government to provide detailed and updated information on the impact of the COVID-19 pandemic on the application of this Convention, including information on the measures adopted or envisaged to mitigate the impact of the pandemic on decent working and living conditions for domestic workers in Switzerland.

Article 3. Freedom of association and collective bargaining. The Committee requested the Government to provide further information on the nature and impact of the innovative solutions put in place by the authorities to address issues of the representativeness of workers in the domestic sector during negotiations for collective agreements. It also requested the Government to indicate the measures taken or envisaged to reinforce the capacity of workers’ and employers’ organizations, organizations representing domestic workers and domestic worker employers’ organizations to effectively promote the interests of their members with regard to the domestic work sector. The Government indicates that the work of the expert group which culminated in the CTT 24/24 for workers in the domestic economy involved representatives of the cantonal and national authorities, employers’ organizations and organizations operating in the sectors concerned (cleaning and care), as well as trade union representatives. It was thus possible, with the help of the social partners, to establish mandatory minimum wages and binding conditions of employment for domestic workers. However, the Committee notes the Government’s indication that the drafting of standard employment contracts with mandatory minimum wages under section 360(a) of the Code of Obligations aims to cover branches in which no collective labour agreement has been concluded. The Government indicates that, in such cases, the tripartite committees for accompanying measures linked to the free movement of persons may submit a request for the drafting of a standard employment contract in which the social partners are fully involved. The Committee requests the Government to continue to provide updated information on any measures taken or envisaged with a view to promoting the right of domestic workers to form and join organizations of their own choosing, as well as the right to bargain collectively, taking account of the particular characteristics of domestic work, and to keep the Office informed of any progress made in this respect, including with regard to the conclusion of collective agreements in the domestic work sector.

Articles 5, 6, 7, 8(3), 11, 15, 17 and 18. Effective protection against all forms of abuse, harassment and violence. Fair terms of employment, decent working conditions and decent living conditions. Information on terms and conditions of employment. Migrant domestic workers. Minimum wage. Fees charged by employment agencies. Complaint mechanisms. Labour inspection. Implementation of the provisions of the Convention. Application of the Convention in practice. The Committee notes the information provided by the Government in reply to its previous request concerning the application of the provisions of the aforementioned Articles.

Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

The Committee notes the observations of the Swiss Union of Agricultural Workers (USP), received on 31 August 2018. The Committee requests the Government to provide its comments in this regard.

Articles 1 and 2 of the Convention. Definitions and exclusions. The Committee previously asked the Government to provide further information on the exclusions indicated in its first report, as well as information on the consultations held with the social partners concerning these exclusions – namely, with regard to: (i) domestic workers who work in a private household; and (ii) domestic workers in agricultural households (section 2(1)(g) of the Labour Act (LTr)) – and to specify all the measures adopted or envisaged to extend the application of the Convention to these workers. The Committee notes the Government’s indication that the Federal Council, in its communication ratifying the Convention, stated that Switzerland might avail itself, if necessary, of the possibility of excluding limited categories of domestic workers at the time of submitting its first report on the application of the Convention. The Government stated in its first report that domestic workers who are not subject to the Labour Act are excluded in accordance with the terms of Article 2 of the Convention. In this regard, the Committee notes that, during consultations in 2016, five possibilities of regulation were envisaged, including domestic workers being subject to the Labour Act, but the latter option was not adopted. However, the Government indicates that, further to the Federal Council Decision of 21 June 2017, a standard employment contract (CTT 24/24) was drawn up in 2018, in partnership with the cantons and in consultation with the representative workers’ and employers’ organizations, in order to define minimum Swiss standards governing conditions of work for workers in the domestic economy and providing such workers with 24-hours-a-day coverage. In this regard, the Government indicates that the exclusion of domestic workers from the Labour Act is countered by the protection afforded in other legislation, as well as by the standard employment contract for the domestic economy (CTT économie domestique) together with cantonal standard employment contracts (CTT cantonaux) and the new CTT 24/24. However, the Committee notes that the rights afforded by certain provisions of the standard employment contracts concerning matters such as weekly rest, normal working hours or holidays, may be waived in writing, to the detriment of the worker. The Committee recalls that the main objective of the Convention is to recognize domestic workers as ordinary workers, and to extend to them rights that are equivalent to those enjoyed by other categories of workers. With respect to domestic workers in agricultural households, the Committee notes the observations of the USP, who states that appropriate conditions of work for domestic workers in agriculture are guaranteed by cantonal standard contracts (section 359 et seq. of the Code of Obligations (CO)) and by a wage directive negotiated between the social partners covering all key points of employment relationships, taking account of the specific needs in agriculture. The USP also observes that the scope of the Labour Act should not be extended to agriculture or allied occupations. With respect to the exclusion of domestic workers from the scope of the Convention, the Committee notes that generally applicable laws, such as the CO, the Code of Civil Procedure (CPC), the Penal Code (CP), and specific regulations, such as the Ordinance on private domestic workers (ODPr), which applies to domestic workers employed by diplomatic officials, the CTT cantonaux and the CTT 24/24, play a role in the protection of domestic workers. Nevertheless, given the particular characteristics of domestic work, which include isolation, dependency on the employer, lack of representation and intermediation through private employment agencies, it is crucial that domestic workers are able to know their rights so that they may effectively exercise them. When the provisions protecting domestic workers are dispersed across multiple laws and regulations, this is made more difficult in practice. It is therefore important that they are afforded with integrated, transparent and effective protection, equivalent to that enjoyed by other workers, by the inclusion of such protections in a general law or in a specific legislation. The Committee also notes the Government’s indication that Switzerland has not excluded from the scope of the Convention the domestic workers of persons who enjoy privileges and immunities, within the meaning of the ODPr. The Committee therefore requests the Government to indicate the measures taken or envisaged to guarantee that domestic workers in private households enjoy all the forms of protection provided for in the Convention.

Article 3. Freedom of association and collective bargaining. The Committee previously asked the Government to provide specific information on the measures adopted or envisaged to ensure that domestic workers enjoy fully all the fundamental rights at work set out in this Article of the Convention, including freedom of association and the effective recognition of the right to collective bargaining. The Government indicates that innovative solutions have been put in place by the authorities to address issues of representativeness during negotiations for collective bargaining and thereby ensure the effective exercise of these fundamental rights at work. It also indicates that the tripartite stakeholders are involved in the implementation of support measures. The Government indicates that rights deriving from freedom of association or those resulting from the federal standard contract on minimum wages and the cantonal standard contracts, and also general rules on protection established by employment contract law, apply to any employment contract, including those that bind domestic workers. In this regard, the Government reiterates that the absence of employers’ organizations and trade unions for domestic workers is offset in Switzerland by the obligation to issue standard cantonal contracts (section 359(2), CO). The Committee requests the Government to provide further information on the nature and impact of the innovative solutions which have been put in place by the authorities to address issues of the representativeness of workers in the domestic sector during negotiations for collective agreements. The Committee also requests the Government to indicate the measures taken or envisaged to reinforce the capacity of workers’ and employers’ organizations, organizations representing domestic workers and domestic worker employers’ organizations to effectively promote the interests of their members with regard to the domestic work sector.

Article 5. Effective protection against all forms of abuse, harassment and violence. The Committee previously asked the Government to indicate the measures adopted or envisaged to protect men and women domestic workers against all forms of abuse, harassment and violence, for example through the establishment of accessible and effective complaint mechanisms for the protection of these workers. It also asked the Government to indicate whether courts or other tribunals have handed down decisions on this subject and, if so, to provide copies. The Government indicates that men and women domestic workers are covered by general rules on protection established by employment contract law, and also the provisions of the CPC establishing a conciliation procedure (section 113(2)(d) CPC), and a substantive procedure, simple and free of charge, for cases having a litigious value of up to 30,000 Swiss francs (section 114(c) CPC). In addition, men and women domestic workers who are victims of serious forms of abuse or harassment are entitled to support under the Federal Act on assistance for victims of offences (LAVI, RS 312.5). Moreover, serious offences (sexual abuse, physical injury, endangering another person’s life, threats, etc.) may come within the scope of criminal law. The Government also indicates that statistics on assistance for victims in Switzerland record the cases in which compensation or moral damages have been awarded, but not specifically in cases of abuse, harassment or violence suffered by men and women domestic workers. The Committee notes that since 2011 some 20 judgments handed down by cantonal courts of second instance have awarded moral damages (between 0 and 5,500 Swiss francs) to men and women domestic workers who have been victims of attacks on their physical, psychological or sexual integrity. The Government indicates that legal proceedings are brought in Switzerland against any person who exploits domestic workers. In this regard, the Committee notes the Federal Court decision of 7 February 2018 on trafficking in persons and the exploitation of domestic workers in Switzerland. The Committee requests the Government to provide information on the scope of the efforts under way and on the nature and content of proceedings in Switzerland brought against persons who exploit domestic workers. The Committee requests the Government to continue providing information on any relevant administrative or judicial decisions.

Article 6. Fair terms of employment, decent working conditions and decent living conditions. The Committee previously asked the Government to indicate the measures taken to ensure that domestic workers enjoy fair terms of employment, decent working conditions and, if they reside in the household, decent living conditions that respect their privacy, and the manner in which these measures are applied in practice. The Government indicates that, with the adoption of the new CTT 24/24, the Federal Council has taken account of trade union demands by defining the minimum Swiss standards on conditions of work with 24-hour-a-day coverage. The Committee notes that the aforementioned standard employment contract provides details of conditions of work and hours of work, presence and rest, and describes the conditions in which men or women workers living under the same roof as the assisted person are entitled to adequate, wholesome food; an individual bedroom that meets requirements of hygiene and comfort (well-lit, heated and ventilated, adequately furnished and spacious); the right to unrestricted use of shared sanitary facilities, the laundry room and, possibly, the internet under conditions that respect the privacy of the worker concerned. Noting that domestic workers do not come under the protection of the Labour Act and that labour inspectors are not allowed to inspect private households in Switzerland, the Committee requests the Government to indicate the manner in which it ensures the application in practice of the minimum Swiss standards on conditions of work with 24-hour-a-day coverage for domestic workers – including migrant domestic workers – employed in private households.

Article 7. Information on terms and conditions of employment. The Committee previously asked the Government to indicate the measures adopted or envisaged to ensure that all domestic workers are informed of their terms and conditions of employment, particularly with regard to the elements set out in this Article of the Convention, in an appropriate, verifiable and easily understandable manner. The Government indicates that, even though the domestic employment contract may be concluded orally, employers are recommended to establish the contract in writing, for reasons of clarity and because some provisions of employment contract law can only be dispensed with through written agreement. According to the new CTT 24/24, it should be pointed out that a copy of the cantonal employment contract and of the individual employment contract must be given to the worker at the start of the employment relationship. Documents relating to hours of work must be stamped every week by the parties to the contract. Furthermore, the Secretariat of State to the Economy (SECO) makes information sheets available on its website for employers and workers in the domestic economy and for companies dealing with service hire and job placement. Organizations responsible for supporting domestic workers also have information and carry out awareness-raising among their members. The Committee requests the Government to continue providing up-to-date information on the steps taken to ensure that domestic workers, including migrant domestic workers, are informed of their terms and conditions of employment in an appropriate, verifiable and easily understandable manner.

Article 8(3). Migrant domestic workers. The Committee previously asked the Government to provide information on any measures adopted or envisaged in cooperation with other member States to ensure the effective application of the provisions of this Convention to all migrant domestic workers. The Government indicates that the employment contract for persons of foreign origin must be concluded in writing and respect the provisions of the Ordinance on the CTT économie domestique, which provides for a minimum wage, and must be submitted with a permit application in a language that the domestic worker understands (English or another language). Moreover, specific protection measures provided for by the ODPr (employment contract drawn up according to the Federal Department of Foreign Affairs (DFAE) model, meetings with workers, etc.) apply in this regard. The Government also indicates that in practice the employment contracts of persons originating from third countries contain a specific provision that the employer is obliged to organize the worker’s return journey at the end of the employment relationship. The Committee notes with interest that, with regard to the coordination of national social security schemes (Article 14 of the Convention), Switzerland has concluded international social security agreements with 48 States to ensure equal treatment for Swiss citizens and citizens of the country concerned, thereby covering about 81 per cent of foreign workers resident in Switzerland. Furthermore, as regards workers who have no work permit or official residence, the Government indicates that these workers are protected, regardless of their permit status, by the Federal Act on unlawful work (LTN), and by other general provisions. The Committee requests the Government to continue providing information on the measures taken to ensure the effective application of Article 8 of the Convention, including on measures taken or contemplated to protect the rights of migrant domestic workers under national laws and regulations, bilateral, multilateral and regional agreements, or other provisions.

Article 11. Minimum wage. The Committee previously asked the Government to provide information on the differences between the minimum wage of domestic workers and of the domestic workers of diplomats, and on the measures taken to determine and review the minimum wage for domestic work. The Government indicates that the minimum wage for domestic work is reviewed regularly in relation to the national CTT. The Committee notes that further to the extension of the Ordinance on the CTT économie domestique, gross minimum wages have been raised by 1.9 per cent, which corresponds to changes in the nominal wage between 2013 and 2015 in Switzerland. As regards the domestic workers of diplomats, the Government reiterates that their net monthly minimum wage is 1,200 Swiss francs. It also indicates that domestic workers of diplomats who prefer to “live out” are entitled to a fair housing allowance, paid by the employer. This must be calculated using the same methods as for other domestic workers in Switzerland, namely, with a minimum amount set according to the scales established by the Regulations of 31 October 1947 on old-age and survivors’ insurance (RAVS) to fix wages taking account of old-age and survivors’ insurance. The employer must also bear the cost of all employer/employee social contributions and health and accident insurance premiums. The Committee requests the Government to provide up-to-date information on the number of complaints submitted in the domestic work sector for non-compliance with minimum wage rates, and on the outcome of these complaints.

Article 15. Fees charged by employment agencies. The Committee previously asked the Government to indicate the measures taken or contemplated to give full effect to Article 15(1)(e). The Government indicates that the payment of enrolment, commission and, possibly, compensation fees for services is the subject of a special written arrangement in the employment contract between the jobseeker (in this case, the domestic worker) and the private employment agency, in accordance with sections 8 and 9 of the Federal Act on employment and service hire (LSE). It also indicates that in practice fees charged by private employment agencies are never deducted from the worker’s pay and no deductions may be made by the employer from the worker’s pay. The Committee requests the Government to indicate the measures taken or contemplated to ensure that fees charged by private employment agencies are not deducted directly or indirectly from the remuneration of domestic workers. The Committee also requests the Government to indicate the measures taken or contemplated to ensure that adequate machinery and procedures exist for the investigation of complaints, alleged abuses and fraudulent practices concerning the activities of private employment agencies in relation to domestic workers.

Article 17. Complaint mechanisms. Labour inspection. Recalling the particular vulnerability of domestic workers, the Committee previously asked the Government to indicate the measures adopted or envisaged to establish effective and accessible complaint mechanisms, including for migrant domestic workers, and the means of ensuring compliance with national laws and regulations for the protection of domestic workers. The Government indicates that general protection rules of employment contract law apply to domestic workers, as do regulations on general procedures, guaranteeing access to the highest levels of the justice system. The Committee notes that, in the context of cases relating to the domestic economy, the Federal Court granted moral damages for injury to personal dignity to a worker in a case concerning very low pay, excessive working hours without any freedom to decide the place of residence, and with no free time or rest periods (Federal Court ruling 4P.32/2004 of 23 April 2004). The Committee further notes that the Federal Court also detected a violation of the duty of assistance and awarded compensation to a domestic worker who was seriously injured in the performance of work and is now an invalid. In this regard, the Committee refers to its comments on the application of the Forced Labour Convention, 1930 (No. 29), and the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), in which it has been recalling for years that effective and accessible complaint mechanisms are necessary to enable domestic workers, including migrant domestic workers, to obtain relief. In addition, it stresses the importance of awareness-raising mechanisms to enable domestic workers to know their rights and how to ensure that these rights are respected. The Committee requests the Government to provide information on the existence of mechanisms available to domestic workers, such as free legal advice, so that they can be informed of administrative and judicial remedies available to them. The Committee also requests the Government to indicate the measures taken or contemplated to establish complaint and monitoring mechanisms in order to ensure observance of the national legislation relating to the protection of domestic workers, particularly measures relating to labour inspection. The Committee reminds the Government of the need to strengthen controls by the labour inspectorate and to impose administrative and criminal penalties that act as a deterrent.

Article 18. Implementation of the provisions of the Convention. The Committee previously asked the Government to provide information on the consultations held with the most representative organizations of employers and workers with a view to implementing the provisions of the Convention by extending or adapting existing measures relating to domestic workers, or by developing specific measures instead. The Government indicates that since 2016 consultations and hearings have taken place to develop new rules concerning 24 hour-a-day assistance for senior citizens (through consultations and an online questionnaire in September 2016 and through discussions within the Federal Labour Commission on 15 November 2016). While welcoming the measures taken by the Government to provide a degree of protection for domestic workers excluded from the scope of the Labour Act, the Committee notes the non-exhaustive list of laws and regulations designed to compensate for the exclusion of domestic workers from the scope of the labour legislation, which includes the following: CO; CP; CPC; Labour Act and its implementing ordinances; Domestic Work Act; LSE; Federal Act on posted workers; LTN; Federal Gender Equality Act; CTT économie domestique; CTT 24/24; CTT cantonaux; and ODPr. In this context, the Committee wishes to emphasize that the general objective of the Convention is to ensure that domestic workers have equality in terms of protection of their labour rights. In this regard, standard employment contracts signify major progress and the adoption thereof can supplement the labour legislation. However, they cannot replace the latter without direct monitoring measures. The application and observance of standard contracts may be compromised, either because domestic workers are not sufficiently informed of their rights and obligations as set out in the various legal texts listed above, or because provisions have been established that allow some provisions of these standard contracts to be modified. The Committee therefore considers it necessary to ensure the inclusion of domestic workers in an effective general or specific law which can give them integrated protection, providing for monitoring systems, accessible complaint mechanisms, and remedies and penalties which go beyond the necessarily limited scope of a standard contract. Considering the particular conditions of domestic work, the Committee requests the Government to provide information in its next report on consultations held with the most representative employers’ and workers’ organizations in order to examine the possibility of extending the scope of application of the Labour Act or of adopting a specific law that would apply to domestic workers in private households.

Application of the Convention in practice. The Committee notes the indication of the Federal Statistics Office (OFS) that, as at the first quarter of 2018, Switzerland had approximately 61,000 households employing domestic workers, which is below the average of 64,000 households recorded in 2017. It also notes that no court ruling has been handed down relating to questions of principle regarding the application of the Convention. The Committee requests the Government to continue providing up-to-date information on any judicial or administrative ruling relating to the application of the Convention.

Direct Request (CEACR) - adopted 2017, published 107th ILC session (2018)

The Committee welcomes the Government’s first report. The Committee notes the observations of the Swiss Federation of Trade Unions (USS), transmitted by the Government, and the observations of the Interprofessional Union of Workers (IGA) and the Interprofessional Workers’ Union (SIT), received on 17 October 2016. The Committee requests the Government to provide its comments in this regard.

Articles 1 and 2 of the Convention. Definitions and exclusions. The Government indicates in its report that domestic work is covered by a contract of employment within the meaning of sections 319 et seq. of the Federal Act supplementing the Swiss Civil Code (hereinafter, the “Code of Obligations”). Section 2(1) of the Ordinance on the model employment contract for workers in the domestic economy of 20 October 2010 (hereinafter “the Ordinance on the domestic economy”) specifies what is understood by domestic work: it consists of employment relations between, on the one hand, workers who carry out domestic activities in a private household and, on the other, their employers. The Ordinance on the domestic economy also specifies the exclusions, including workers in the domestic economy for agricultural households. The Committee also notes the Government’s indications that domestic workers who are not covered by the Labour Act are excluded under Article 2 of the Convention. In this regard, the Committee notes that private households are excluded from the scope of application of the Labour Act. According to the Federal Statistical Office, in 2015 there were around 49,000 households in Switzerland employing domestic workers. The USS indicates that a major problem in the implementation of the Convention lies in the fact that the protection afforded under the Labour Act does not apply to domestic workers employed in a private household as, in accordance with section 2(1)(g), private households are not covered by the scope of application of the Labour Act. The USS adds that, as workers in the domestic economy in agricultural households are excluded from the scope of the Ordinance on the domestic economy, these domestic workers are not protected against “wage dumping”. As these workers are not covered by the scope of application of the Labour Act, they are therefore at a double disadvantage. The USS expresses the view that depriving them once again of conditions of work which are in any event very precarious in the agricultural sector is not justifiable. The IGA and the SIT are also of the view that domestic workers without a work or residence permit should benefit from the protections afforded by the Convention. These workers’ organizations add that studies estimate that the number of domestic workers without a work or residence permit in Switzerland is 40,000. The Committee requests the Government to provide further information on the exclusions indicated in its first report, as well as information on the consultations held with the social partners concerning these exclusions, particularly with regard to domestic workers who are not covered by the Labour Act and domestic workers in agricultural households, and to specify all the measures adopted or envisaged to extend the application of the Convention to these workers. It also requests the Government to provide its comments in reply to the observations made by the Interprofessional Union of Workers and the Interprofessional Workers’ Union concerning domestic workers with neither a work nor a residence permit.

Article 3. Freedom of association and collective bargaining. The Committee notes that Switzerland has ratified the ILO’s eight fundamental Conventions. The Government indicates that fundamental rights, set out in the Swiss Federal Constitution and implemented at various levels by the Swiss labour legislation, apply to all workers without distinction. The Government adds that the absence of employers’ organizations and trade unions at the branch level is compensated in Switzerland by the requirement to issue model employment contracts at the cantonal level. These contracts can only be subject to exceptions to the detriment of workers through a written agreement. The Government considers that, even if the model employment contracts are not binding, they serve to fill the gap when no employment contract has been concluded. With regard more particularly to the existence of organizations of domestic workers and employers in Switzerland, the Government indicates that there is a recognized association, namely the Association of Employers of Domestic Employees of the Canton of Geneva (HERA). The USS indicates that there is no specific regulation to guarantee the effective promotion and protection of the rights of domestic workers. The USS adds that the situation in relation to freedom of association is not satisfactory. The Committee draws the Government’s attention to Paragraph 2(b) of the Domestic Workers Recommendation, 2011 (No. 201), which provides that Members should take or support measures to strengthen the capacity of workers’ and employers’ organizations, organizations representing domestic workers and those of employers of domestic workers, to promote effectively the interests of their members, provided that at all times the independence and autonomy of such organizations are protected under the law. The Committee requests the Government to specify the measures taken or envisaged to respect, promote and realize the fundamental principles and rights of domestic workers in practice, including specific information on the measures adopted or envisaged to ensure that domestic workers enjoy fully all the fundamental rights at work set out in this Article of the Convention, including freedom of association and the effective recognition of the right to collective bargaining.

Article 5. Effective protection against all forms of abuse, harassment and violence. The Government indicates that there are no specific measures for the effective protection of domestic workers against abuse, harassment and violence. However, it adds that this does not mean that domestic workers do not benefit from any protection, as the general rules of Swiss and international law apply to them. The Committee notes, by way of example, that section 328(1) of the Code of Obligations establishes general protection for the personality rights of workers. This section requires the employer to protect and respect, in working relations, the personality of the worker, to take the necessary care for the worker’s health and to ensure the maintenance of morals. In particular, the section provides that the employer shall ensure that workers are not sexually harassed and that, where applicable, they are not placed at a disadvantage by reason of such acts. Protection against sexual harassment is also set out in section 4 of the Federal Act on equality between men and women. In criminal matters, the provisions of the Swiss Penal Code on threats and constraint are relevant, as are those on violations of sexual integrity. In the event of violations of these legislative provisions, any worker – including men and women domestic workers – may lodge a complaint with the competent judicial authority. The USS indicates that there is no specific protection against forms of abuse, harassment, psychological or physical violence or other violations against personality rights. Only the general provisions of section 328 of the Code of Obligations are applicable. The Committee refers to Paragraph 7 of Recommendation No. 201, which provides that Members should consider establishing mechanisms to protect domestic workers from abuse, harassment and violence, such as: (a) establishing accessible complaint mechanisms for domestic workers to report cases of abuse, harassment and violence; (b) ensuring that all complaints of abuse, harassment and violence are investigated and prosecuted, as appropriate; and (c) establishing programmes for the relocation from the household and rehabilitation of domestic workers subjected to abuse, harassment and violence, including the provision of temporary accommodation and health care. The Committee requests the Government to indicate the measures adopted or envisaged to protect men and women domestic workers against all forms of abuse, harassment and violence, for example through the establishment of accessible and effective complaint mechanisms for the protection of these workers. It also requests the Government to indicate whether courts or other tribunals have handed down decisions on this subject and, if so, to provide copies.

Article 6. Fair terms of employment, decent working conditions and decent living conditions. The Government indicates that domestic workers benefit from the protection of sections 319 et seq., of the Code of Obligations, in the same way as all workers, and that the employer is required to protect the personality rights and privacy of workers. The USS refers in its observations to the problems related to taking responsibility for a person in the home for 24 hours a day. It adds that there are many cases of women domestic workers who work for weeks without a break, because they have to provide care to persons who are ill, who live alone and who require care. The USS is of the view that the rights of domestic workers who provide care at home in Switzerland are not taken fully into consideration. These so-called “live-in” workers work in excess of normal hours and often do not have their own room. Taking into account the observations of the Swiss Federation of Trade Unions, the Committee requests the Government to indicate the measures taken to ensure that domestic workers enjoy fair terms of employment, decent working conditions and, if they reside in the household, decent living conditions that respect their privacy, and the manner in which these measures are applied in practice.

Article 7. Information on terms and conditions of employment. The Government indicates that the employment contract can be concluded orally or in writing (section 320 of the Code of Obligations). Moreover, it is concluded tacitly when the employer accepts over a period of time work in her or his service which can only be carried out, in accordance with the circumstances, in exchange for a wage. The Government adds that, even though no form of contract is required, it is recommended to conclude an employment contract in writing, partly for reasons of clarity, and partly because certain legal provisions respecting the contract of employment only allow derogations on the basis of a written agreement. The Committee notes the existence at the federal and cantonal levels of model contracts which are available to future employers of domestic workers. It also notes that a written contract is compulsory for migrant domestic workers. The Government adds that the Secretariat of State for the Economy and the cantons offer various tools and materials on their websites to raise the awareness of employers and domestic workers. These materials also help to reduce the administrative burden involved in preparing and concluding a contract of employment by setting out the procedures to be followed by future employers. The USS is of the view that section 320 of the Code of Obligations does not meet the requirements of Article 7 of the Convention, as the contract of employment for domestic workers (who are not recruited from abroad) may be concluded orally. With reference to the observations of the Swiss Federation of Trade Union, the Committee requests the Government to indicate the measures adopted or envisaged to ensure that all domestic workers are informed of their terms and conditions of employment, particularly with regard to the elements set out in this Article of the Convention, in an appropriate, verifiable and easily understandable manner.

Article 8(3). Migrant domestic workers. The Government indicates that Switzerland may conclude partnerships in the field of migration. In particular, it can conclude agreements with States on the recruitment of foreign workers. With regard to domestic workers, there is currently no specific cooperation measure. The Government adds that, with the exception of trafficking in humans, a major risk to which domestic workers may be exposed, there is no general right to repatriation for migrant domestic workers upon the termination of their employment. However, it describes the particular situation of certain domestic workers. In this regard, the Ordinance on the conditions for the entry, residence and work of private domestic workers of persons benefiting from privileges, immunities and facilities (ODPr) requires the employer to pay the cost of the return of the private domestic worker upon the termination of the employment, if the latter has not found new employment as a private domestic worker within the meaning of the ODPr. The Committee requests the Government to provide information on any measures adopted or envisaged in cooperation with other member States to ensure the effective application of the provisions of this Convention to all migrant domestic workers.

Article 9. Freedom of choice on whether to reside in the household. The Government indicates that it is for the parties to the contract to agree on whether or not to create a domestic community, within the meaning of section 328(a) of the Code of Obligations. Domestic workers cannot be forced to reside in the employer’s household. The Government adds that, in practice, it is often the case that domestic workers, and particularly those employed in the households of the elderly, have to be present for the entire day (that is, outside hours of work) and during the night. There is nothing in Swiss legislation which would prohibit the conclusion of an agreement of this type. The Committee requests the Government to indicate the manner in which it is ensured that effect is given in practice to the provisions of clauses (a) and (b) of Article 9 of the Convention.

Article 10. Measures to ensure appropriate rest periods and leave. The Government indicates that hours for work are determined by the parties to the individual employment contract or through a collective labour agreement. According to recent statistics, average hours of work in Switzerland are 41.7 hours a week. Moreover, under section 359(2) of the Code of Obligations, the cantons are required to issue model employment contracts for agricultural workers and those in household service. These model contracts determine, among other elements, hours of work and rest periods and the conditions of work of women workers and young workers. The provisions of the cantonal model contracts can only be subject to exceptions to the detriment of workers through a written agreement. The Government also refers to the Code of Obligations, which requires the employer to grant the worker one day of leave each week (section 329 of the Code of Obligations). There can be exceptions if they are justified by specific conditions and if the worker consents to them. The USS is of the view that, as domestic workers are not protected under the Labour Act, they cannot benefit from equality of treatment in relation to rest periods and hours of work in comparison with other categories of workers. As all the model contracts at the cantonal level can be contractually set aside if the employer so wishes, the USS considers that these contracts do not afford any protection. Noting that model employment contracts can be modified contractually, the Committee requests the Government to provide information on the effective and accessible means of ensuring compliance with this provision of the Convention. With regard to Article 10(2), the Committee requests the Government to provide more ample information on the exceptions provided for in law and practice to the period of weekly rest of at least 24 consecutive hours.

Article 11. Minimum wage. The Government indicates that a compulsory minimum wage is guaranteed for domestic workers under the terms of section 5 of the Ordinance on the domestic economy. The parties to the employment contract may freely agree the amount of the wage, while respecting the compulsory minimum wage. The exceptions to the minimum wage imposed by the Ordinance on the domestic economy are as follows: the Canton of Geneva, which has fixed its own minimum wages, ranging between CHF18.60 and CHF24.45 an hour, and the domestic workers of diplomats covered by the Ordinance on the conditions for the entry, residence and work of private domestic workers of persons benefiting from privileges, immunities and facilities (ODPr), section 43 of which provides for a net minimum monthly wage of CHF1,200, with the employer also being required to pay all the employer’s/employee’s social contributions, health and accident insurance premiums, and accommodation, food and various other expenses. The USS is of the view that the minimum wage under the national model employment contract should be reviewed regularly and indicates that it is too low and must be increased. Taking into account the observations of the Swiss Federation of Trade Unions, the Committee requests the Government to provide information on the differences between the minimum wage of domestic workers and of the domestic workers of diplomats, and on the measures taken to determine and review the minimum wage for domestic work.

Article 12. Payment in kind. The Government indicates that remuneration is regulated by the Code of Obligations, the cantonal model contracts and the ODPr. In accordance with section 322 of the Code of Obligations, the employer is required to pay the worker the agreed wage that is customary or determined by a model employment contract or a collective agreement. If the worker resides in the employer’s household, maintenance and accommodation are part of the wage, unless agreed to the contrary or by custom. Section 7 of the Ordinance on the domestic economy provides that if a worker receives part of the wage in the form of accommodation or food, the value of these benefits shall be determined through the amounts set in the Regulation of 31 October 1947 on old-age and survivors’ insurance. In principle, the cantonal model contracts provide that the worker is entitled to a wage in cash and, in so far as the contract so provides or it so arises in the circumstances, to benefits in kind. With the exception of a provision to the contrary in a collective labour agreement or a model employment contract, the wage shall be paid at least each month, and more precisely at the end of the month. Section 323(1) of the Code of Obligations provides that shorter periods or other terms of payment may be provided for by agreement or custom. The Committee requests the Government to provide information on the effect given in practice to Article 12 of the Convention, including examples of other terms of payment which may be envisaged by agreement or usage, as set out in section 323(1) of the Code of Obligations.

Article 13. Occupational safety and health. The Government indicates that an employer who engages a domestic worker is subject to the obligations set out in section 328 of the Code of Obligations. In this respect, the employer is required to protect and respect, in working relations, the personality rights of the worker and to demonstrate the necessary care for the worker’s health and ensure the maintenance of morals. In order to protect the life, health and personal safety of the worker, the employer is required to take the measures recommended by experience, applicable in the present state of technology, and suited to the conditions of work or the household, in so far as the working relations and the nature of the work fairly permit this requirement. The USS is of the view that this provision is not given effect because domestic workers are not covered by the protection afforded by the Labour Act. Compliance with the health regulations in force at the workplace is not monitored, as labour inspections are not undertaken in private households in Switzerland. The USS considers that the general rules of section 328 et seq. of the Code of Obligations do not change this situation. The Committee requests the Government to specify the measures adopted or envisaged for the progressive application of Article 13(1), in consultation with the most representative organizations of employers and workers and, where they exist, with organizations representative of domestic workers and those representative of employers of domestic workers.

Article 15. Fees charged by employment agencies. The Government indicates that private employment agencies may only place workers or hire their services. Private employment agencies are subject to authorization, either at the cantonal level (the authorization of the cantonal labour office), or the federal level in the case of the placement of workers abroad or foreign workers. Authorization for the placement of foreign workers is provided by the Secretariat of State for the Economy, in addition to the cantonal authorization (section 2 of the Federal Act on the employment service and the hiring of services). The Federal Act on the employment service and the hiring of services (LSE) establishes penal sanctions for private employment agencies which procure work or hire services without authorization, which place foreign nationals or hire services without being in compliance with the legislation respecting foreign workers (section 39 of the LSE). Penalties are also envisaged if the private employment agency does not communicate in writing the essential content of the employment contract, or only does so in an incomplete manner, or if it concludes an unlawful arrangement. A range of penalties are also established in relation to commissions and fraudulent propaganda. With regard to Article 15(1)(e) of the Convention, the Government indicates that the placement agency may require the jobseeker to pay an enrolment fee and a commission for placement, and an indemnity for the provision of services respecting a special arrangement (section 9(1) of the LSE). The single enrolment fee, which is not dependent on a successful placement, covers the cost of registering the jobseeker. The placement commission is only due from the time when the placement results in the conclusion of a contract. In other terms, it consists of a payment to cover ordinary and special expenditures related to the placement process. The placement commissions and enrolment fees are set by the Federal Council, which prevents abuse. The enrolment fee was introduced by the legislator to prevent any abuse by jobseekers who could enrol with a private agency without being really interested in seeking a job. Moreover, the fact that the commission is dependent on the success of the placement guarantees delivery of high quality services by the agency. The Government indicates that in practice this commission is often covered, in whole or in part, by the employer. In the event that the commission is paid by the worker, its amount is generally deducted within the limit of the permissible deductions (around 5 per cent of the monthly wage) over the first 12 months. However, in most cases, the employer covers these costs. As the Federal Council determines and limits the maximum amount of enrolment fees and placement fees, and in practice these costs are often covered by the employer, and if they are deducted from the worker’s wage, the employer does so over a period that is generally very long, the Government indicates that the risk of abuse is fairly low. Considering that the domestic worker may be required to pay the enrolment fee, the placement commission and the indemnity for the provision of services, the Committee requests the Government to indicate the measures adopted or envisaged to give full effect to Article 15(1)(e), in consultation with the most representative organizations of employers and workers and, where they exist, with organizations representative of domestic workers and those representative of employers of domestic workers.

Article 17. Complaint mechanisms. Labour inspection. The Government indicates that access to the household by the labour inspection services raises possible difficulties, as private households are excluded from the scope of application of the Labour Act. The Government adds that there remain doubts concerning the possibility and legality, in light of the national legislation, of the intervention of a labour inspector in a private household. In accordance with section 7 of the Federal Act on unlawful work, persons responsible for supervision may carry it out at any workplace during the hours of work of employees. The enforcement authorities verify compliance with the legal provisions respecting social insurance, foreign nationals and taxation at source. In practice, these controls are mainly carried out in writing. With regard to complaint mechanisms, the USS indicates that foreign workers who are low skilled often do not know their rights. They are therefore left to the goodwill of the employer and do not dare to complain, through fear of losing their job and their means of subsistence in Switzerland. Recalling the particular vulnerability of domestic workers, the Committee requests the Government to indicate the measures adopted or envisaged to establish effective and accessible complaint mechanisms and means of ensuring compliance with national laws and regulations for the protection of domestic workers, and particularly for migrant domestic workers.

Article 18. Implementation of the provisions of the Convention. The Government indicates that the Ordinance on the model employment contract for workers in the domestic economy, the cantonal model contracts, the ODPr and the rules of Swiss labour law which are in force are the principal texts which give effect to the provisions of the Convention. In view of the observations made by workers’ organizations on the application of certain provisions of the Convention, the Committee requests the Government to provide information on the consultations held with the most representative organizations of employers and workers with a view to the implementation of the provisions of the Convention by extending or adapting the existing measures respecting domestic workers, or the development of specific measures.

Application of the Convention in practice. The Committee requests the Government to indicate whether courts of law or other tribunals have given decisions involving questions of principle relating to the application of the Convention and, if so, to provide the text of these decisions. It also requests the Government to provide information on the manner in which the Convention is applied and to provide, where such statistics exist, information on the number of workers covered by the measures giving effect to the Convention, disaggregated by gender and age, and on the number and nature of infringements reported, and copies of any model contract of employment for domestic work.