Demande directe (CEACR) - adoptée 2017, publiée 107ème session CIT (2018)

Convention (n° 189) sur les travailleuses et travailleurs domestiques, 2011 - Suisse (Ratification: 2014)

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.