Observation (CEACR) - adoptée 2022, publiée 111ème session CIT (2023)

Convention (n° 98) sur le droit d'organisation et de négociation collective, 1949 - Suisse (Ratification: 1999)

The Committee notes the observations of the Swiss Federation of Trade Unions (USS), received on 31 August 2022, which relate to matters examined in the context of the present comment.

Articles 1 and 3 of the Convention. Adequate protection against anti-union dismissals. The Committee recalls that it has been asking the Government for many years to take steps to strengthen the protection provided at national level against anti-union dismissals. The Committee notes the Government’s indications that: (i) in June 2019, Switzerland launched an external, independent mediation process on the question of protection of trade unionists in the event of unfair dismissal, in order to find a compromise solution acceptable to everyone; (ii) the mediator, chosen by the social partners, is an experienced lawyer who is leading the mediation in a completely independent manner; (iii) the Government is providing technical and scientific support to the mediator but is not a party in the mediation process; (iv) the mediation is being financed by the State Secretariat for the Economy (SECO); and (v) the mediation has been delayed because of the situation resulting from the COVID-19 pandemic but is still in progress.

In its previous observation, the Committee noted that the respective positions of the social partners had not changed: on the one hand, the employers’ representatives do not wish to adopt more severe penalties for unfair dismissals; on the other hand, the workers’ representatives are calling for the solution of reinstatement to be retained or at least for the maximum amount of compensation for anti-union dismissal, established by law as the equivalent of six months’ wages, to be increased to 12 months’ wages. The Committee notes, according to the information provided by the USS, that a study undertaken by the University of St. Gallen (HSG) shows that compensation in the majority of cases corresponds to three to four months’ wages, even for flagrant violations of freedom of association. According to the USS, that amounts to an invitation for employers to engage in unfair dismissals since they have little or nothing to fear in financial terms. The USS adds that a statutory minimum amount should be fixed for compensation, with no ceiling imposed on the latter, so that the level of compensation can be determined by the judge according to the economic power of the employer concerned. The USS also recalls that reintegration remains a crucial issue.

The Committee notes with regret that there has been no significant change in this matter, while recognizing the Government’s efforts to continue to promote social dialogue in order to reach a solution. In these circumstances, the Committee is bound to recall that: (i) even though the Convention does not require States to incorporate provisions on reinstatement into their legislation, reinstatement constitutes the most effective remedy against acts of anti-union discrimination; and (ii) when, on the other hand, a country opts for a system of compensation for anti-union dismissal, the compensation should fulfil certain conditions and in particular: (i) be higher than that prescribed for other kinds of dismissal, with a view to the effective dissuasion of this type of dismissal; and (ii) be adapted in accordance with the size of the enterprise concerned (2012 General Survey on the fundamental Conventions, paragraphs 182–185). Noting that the Government’s efforts to promote an agreement between the social partners on this question have now extended over many years, the Committee emphasizes that if it is not possible to reach a consensus, the Government should take the decisions that are necessary to ensure observance of the international labour conventions which it has ratified. While hoping that the mediation process under way will enable an agreement to be reached, the Committee requests the Government to take the necessary steps to ensure full conformity with the Convention in law and practice as regards protection against anti-union dismissal. The Committee requests the Government to provide information on progress made in this regard.

Article 4. Promotion of collective bargaining. The Committee notes the statistics available from the Federal Statistics Office on the collective agreements signed and the number of employees covered (as of 1 July 2021, a total of 44 legally binding national collective agreements covering 1,050,657 workers, as well as 40 extended cantonal collective agreements covering 50,331 workers). The Committee requests the Government to continue providing up-to-date statistical information on the number of collective agreements by sector and the number of workers covered.