Rapport intérimaire - Rapport No. 335, Novembre 2004

Cas no 2265 (Suisse) - Date de la plainte: 14-MAI -03 - Actif

Allegations: The complainant organization alleges that, in respect of anti-union dismissals in the private sector, Swiss legislation is not in keeping with international labour standards, particularly Convention No. 98, which Switzerland has ratified, in that it does not provide for the reinstatement of trade union officials or representatives and only results in the payment of nominal compensation which fails to act as a deterrent, amounting to approximately three months’ salary and limited to six months’ salary

1. 1260. The Swiss Federation of Trade Unions (USS) presented the complaint in a communication dated 14 May 2003, which contained appendices. In a communication dated 10 June 2003, USS submitted additional information.
2. 1261. The Government sent its observations in a communication dated 1 April 2004, which contained appendices.
3. 1262. Switzerland has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 1263. USS points out that Swiss legislation inadequately protects trade union officials and representatives, in violation of Article 1 of Convention No. 98 and the Workers’ Representatives Convention, 1971 (No. 135). Although Convention No. 135 has not been ratified by Switzerland, according to USS the resulting principle of the protection of workers’ representatives at the enterprise must be respected by Switzerland in its position as a Member of the ILO. To support its complaint, USS presents, on the one hand, the relevant legislative provisions (1) and, on the other hand, examples of dismissals which allegedly show the extent of anti-union practices in Switzerland; practices which the legal system is not in a position to stop (2).
2. 1. Legislative provisions and case law
3. 1264. USS refers to the second paragraph, subparagraphs (a) and (b), of section 336, III – Protection against dismissal, of the Code of Obligations (CO).[1] This provision states that notice of dismissal given by the employer is unfair:
4. (a) by reason of the workers’ membership or non-membership of a workers’ organization or legitimate trade union activities;
5. (b) while the worker, who is an elected workers’ representative, is a member of a works council or enterprise institution and the employer cannot prove that there were justified grounds for dismissal.
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7. Note [1] : See full text of section 336 and 336(a) in the appendix.
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9. 1265. USS indicates that, by virtue of section 336(a) of the CO, the penalty for such unfair dismissal is compensation, the amount of which is set by the judge and limited to six months’ salary. The complainant organization states that the Federal Council had initially suggested setting the maximum amount at 12 months’ salary, but this amount was halved during the preparatory work. Furthermore, USS highlights that, in recent years, in most cases courts have only allocated a maximum of three months’ salary.
10. 1266. According to USS, the payment of three months’ salary is not a deterrent for employers who wish to dismiss trade union representatives. The same applies to compensation amounting to six months’ salary for an enterprise which intends to terminate a collective agreement or prejudice the working conditions of its employees. Furthermore, the dismissal of one or several trade union representatives can lead to intimidation.
11. 1267. USS continues by stating that Swiss legislation does not provide for the reinstatement of trade union officials or workers’ representatives who have been dismissed unfairly.
12. 1268. In fact, under Swiss legislation, there is only one circumstance under which persons dismissed unfairly are reinstated, namely unfair dismissal covered by section 10 of the Gender Equality Act (LEg). The complainant organization cites three paragraphs of this section, particularly paragraph 1, which provides that:
13. The termination of the contract of employment by the employer is annullable when it is not based on justifiable grounds and when it follows a complaint made to a superior or another relevant body within the enterprise, the establishment of a conciliation procedure or the institution of legal proceedings.
14. Paragraph 3 of section 10 even provides for provisional reinstatement by the judge “for the duration of the procedure when it appears probable that the requirements for the annulment of the dismissal are met”.
15. 1269. USS highlights therefore that when a trade union official or elected workers’ representative asserts claims other than those relating to wage equality, for example claims relating to the wages of both men and women or, more generally, simply initiating collective bargaining procedures, his or her reinstatement cannot be ordered by the courts even if the dismissal has been recognized as unfair. According to the complainant organization, the Swiss legislature recognizes reinstatement as a measure to reassure women who wish to prove that they have suffered wage discrimination. However, the legislature should especially protect trade union representatives since they are the first to be able to give employees information on their rights, especially as regards wage equality.
16. 2. Specific examples of anti-union dismissal
17. 1270. USS cites 11 specific examples to support its complaint, whilst highlighting that these do not constitute an exhaustive list, and that examples 4 to 8 occurred before Switzerland had ratified Convention No. 98.[2]
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19. Notes [2] : Switzerland ratified this Convention on 17 August 1999.
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21. 1271. The first example relates to a worker who, after being employed by an enterprise since 1990, was elected by his colleagues in 2001 to be a member of the council founding the enterprise’s pension fund. He was still a member of this council when he was dismissed. He was also a trade union representative of the Industrial, Construction and Service Trade Union (FTMH). He was also a member of the election committee responsible for appointing workers’ representatives. Some of his activities to defend the interests of workers at the enterprise are briefly described by USS. On 15 November 2002, the enterprise notified the worker of his dismissal as of 28 February 2003. Following opposition from the worker, the enterprise explained that he was dismissed owing to economic difficulties and that several people would also be affected by such a measure. The person concerned initiated legal proceedings on 20 March 2003, a copy of which was attached to the complaint, with the aim of having his dismissal declared unfair under section 336, paragraph 2(b), of the CO (and incidentally under section 336, paragraph 2(a), of the CO) and having the enterprise sentenced to pay him six months’ salary under the terms of section 336(a) of the CO. Among other things, the complainant organization alleged that only one other person was affected by a similar measure. USS indicates that the claim is pending.
22. 1272. The second example relates to a worker affiliated to the FTMH. The person began working at an enterprise in 1973. Following restructuring, she was first dismissed in 1983, then re employed in 1984. In 1996 she became a member of the works council, and some of her activities to protect workers’ interests at the enterprise, particularly as regards wage equality, are mentioned by USS. In 2002, following various incidents, she resigned from the works council. A request for reinstatement to the council was introduced by the FTMH but the enterprise put off coming to a decision. The contract of employment of the person concerned was finally terminated through a letter dated 31 May 2002 with effect from 30 September 2002, owing to the downsizing of the production facility and for economic reasons. The person concerned initiated legal proceedings against the enterprise on 9 December 2002, a copy of which was attached to the complaint, for wage discrimination and unfair dismissal. Her claim indicated that her post has since been refilled.
23. 1273. The third example is that of someone who, according to the complaint, was president of the works council at the time of his dismissal. Through a letter dated 29 October 2002, he was notified of his dismissal on economic grounds with effect from 30 January 2003, following which date legal proceedings were initiated. Lastly, on 7 February 2003, an agreement between the worker and the enterprise was concluded. This agreement committed the employer to pay the worker Sw.frs.10,000 as a “full and final settlement” and Sw.frs.1,200 for legal costs. In addition to the agreement, USS submitted a letter from the worker’s counsel through which a copy of this agreement was sent to the FTMH. In this letter, the lawyer indicates that “it would have been fairer to have obtained compensation amounting to three or four months’ salary given the circumstances of this dismissal. Unfortunately, the judge kept to the relatively restrictive practice of the courts in respect of the granting of compensation”. Nonetheless, the lawyer states that the person concerned was satisfied with this settlement which made it possible to resolve the dispute quickly; reference is also made to the “dubious solvency” of the enterprise.
24. 1274. The fourth example is that of the dismissal of a member of the FTMH, who had worked for more than 30 years for an employer who went bankrupt. In 1988 he was re-employed by another enterprise to do the same work. In 1996, he was president of the works council when the management decided to rescind a collective agreement, but in the end backed down to workers’ demands. On another occasion, intervention by the person concerned, following an attempt to reduce annual leave, led to his dismissal in 1998, after 40 years of service. On 19 August 1999, the labour court dealing with the dispute sentenced the enterprise to pay three months’ salary in compensation for, according to USS, unfair dismissal.
25. 1275. The fifth example relates to the dismissal of the president of the works council on 3 May 1989. Legal proceedings resulted in a ruling on 28 January 1991 sentencing the enterprise to pay compensation amounting to six months’ salary. Extracts from this ruling were attached to the complaint. The court recognized that the worker was indeed the president of the works council when he received his notice of dismissal and that this was a case of “increased protection for workers’ representatives”. Therefore, the employer had to provide evidence of justified grounds for dismissal. Nonetheless, the court established that in this instance there were no justified grounds and thus “by dismissing the complainant [...] the defendant enterprise acted improperly”. It was therefore sentenced to pay compensation. The court stated that the compensation provided for in section 336(a) of the CO “has a punitive and compensatory role” and must be paid “even in the absence of injury”. Such compensation is set by the judge, but cannot exceed six months’ gross salary. The court considered that in this instance this maximum amount “appeared to take into consideration the set of circumstances, particularly the seriousness of the attitude adopted by the defendant enterprise”.
26. 1276. In the sixth example, USS states that the courts allocated one-and-a-half months’ salary as compensation for unfair dismissal to a worker who represented her colleagues within a welfare committee. Extracts from this ruling of 16 September 1998, which was issued in Italian, were attached to the complaint. The seventh example relates to a worker who was employed by an enterprise between 1960 and 1992 and was a member of the FOBB (currently the Industry and Construction Trade Union – SIB). Among other things, he had been a trade union official since around 1980 on the Joint Committee of Building Trades. Through a letter dated 31 March 1992, the enterprise notified him of his dismissal with effect from 31 May 1992 owing to its economic situation. In a ruling of 26 April 1994, the appeals chamber of the labour court dealing with the dispute (extracts of its ruling were attached to the complaint) concluded that the enterprise should be “reproached for unfair dismissal exclusively based on the CO, section 336, paragraph 2(a)”. The courts considered that the enterprise was guilty of serious misconduct “given that the trade union activity of the respondent alone had led to his dismissal …”. USS states that the appeals chamber of the labour court sentenced the enterprise to pay the worker the equivalent of five months’ salary.
27. 1277. The eighth example is that of two workers unfairly dismissed by an enterprise. USS states that the appeals chamber dealing with the dispute (extracts of its ruling written in Italian were attached to the complaint) considered that these workers had been unfairly dismissed. Indeed, one of the two workers had played a very important role in trade union activity at the enterprise. According to the complainant organization, the two workers had been dismissed for being trade union “spies”. USS does not state whether the workers were paid compensation. The ninth example is that of a worker who was dismissed, according to USS, because he had demanded better pay for employees. The complainant organization indicates that in August 2001 the courts allocated him compensation amounting to five months’ salary for unfair dismissal. In its communication of 10 June 2003, USS sent extracts of the ruling sentencing the enterprise to pay, amongst others, the amount of Sw.frs.25,000 in compensation.
28. 1278. The tenth example refers to the dismissal of a trade union official, according to USS, because of his rejection of an amendment to the annual working hours which was not approved by the joint committee. Through its communication dated 10 June 2003, the complainant organization sent a copy of an agreement concluded between the two parties and by virtue of which the enterprise agreed to pay compensation based on section 337 of the CO (unjustified dismissal).
29. 1279. The eleventh and final example concerns a worker who, employed since 1998, was involved with the Comedia media trade union in 1999. Comedia approached the management of the enterprise where the person concerned worked, with a view to concluding a collective agreement. The person concerned was involved in various trade union activities as a member of the trade union in 2001. Through a registered letter dated 22 March 2001, she was notified of the termination of her contract of employment as of 31 May 2001, owing to the fact that her reduced level of activity was causing serious production planning problems. Legal proceedings were initiated on 12 September 2001 to have the dismissal declared unfair since it was based on the worker’s trade union activities (paragraph 2(a), section 336, of the CO). The labour court dealing with the case in the first instance rejected the complainant’s suit through the ruling of 7 May 2002, a copy of which was attached to the complaint. In its ruling, the court recalled that when an allegation is made that a worker has been dismissed by reason of trade union membership or activities, “the burden of evidence lies with the complainant ...” and that “the judge can indeed presume that unfair dismissal has occurred when the employee produces sufficient evidence to show that the reasons given by the employer are fictitious. However, the burden of evidence cannot be reversed on the basis of this presumption”. The court considered that in this instance, the complainant had not “provided the evidence required by section 336, paragraph 2(a), of the CO”. An appeal was lodged, which the appeals chamber partially accepted in a ruling given on 24 September 2002, a copy of which was also attached to the complaint. While confirming the ruling on the burden of evidence by virtue of section 336, paragraph 2(a), of the CO, the appeals chamber indicated that it was “indisputable that the complainant was involved in trade union activity at the defendant enterprise and that she was one of the two representatives of the Comedia trade union at this enterprise”. Therefore, the court concluded that “owing to the coexistence of inferences, it was possible to state that the complainant’s membership of a trade union and her trade union activities at the defendant enterprise had a predominant influence on the decision to dismiss her [...] the principle of this dismissal is unfair”. The appeals chambers granted compensation amounting to two months’ gross salary to “take the set of circumstances of the case into account”. Indeed, the chamber considered that “the behaviour of the employer [...] was moderately at fault ...”. As regards the compensation, the appeals chamber stated that it “had a dual punitive and compensatory role [...] it must be paid even if the victim has not suffered from, or is unable to prove, injury”.
30. 3. Conclusions
31. 1280. USS concludes by pointing out that Swiss legislation as such, by not providing for the possibility of ordering the reinstatement of a trade union official at an enterprise, in cases of unfair dismissal, makes it impossible to meet the obligations resulting from Convention No. 98. This situation is aggravated by the fact that compensation for anti-union dismissal is nominal.
32. 1281. USS maintains that Convention No. 98 should be applied directly to the national legal system. The courts should therefore order the reinstatement of unfairly dismissed trade union officials, as well as workers dismissed by reason of legitimate trade union activities. Nevertheless, the complainant organization recognizes that, in the absence of a specific legislative provision, the courts are unlikely to order the reinstatement of a worker based on the provisions of the Convention.
33. B. The Government’s reply
34. 1282. The Government’s reply is divided into four parts. In the introductory part of its reply, the Government responds to the argument put forward by USS that Switzerland should be bound by the principles resulting from Convention No. 135. The Government points out that: (1) the body of Swiss law, particularly the Code of Obligations (CO) and the Employee Participation Act (Lpart), currently contains provisions that protect trade union representatives and elected workers’ representatives; (2) Convention No. 135 is not one of the eight ILO core Conventions relating to the fundamental principles and rights that Members of the ILO must respect and promote, regardless of the number of Conventions that they have ratified; (3) members of the tripartite federal commission dealing with ILO activities have the right to suggest the ratification of international labour Conventions; therefore, as a member of this commission, it is down to USS to put forward a proposal for the ratification of Convention No. 135. The Government therefore concludes that since Switzerland has not ratified this Convention, it is not bound by it or the principles contained therein. Another reason for not being bound by this Convention is the fact that it is not a core Convention.
35. 1. Part I of the reply
36. 1283. In this part of the reply, the Government recalls the position of the Swiss Federal Council (executive body) on Article 1 of Convention No. 98 as explained in its message providing for the ratification of this instrument; examines the issue of reinstatement, in light of Convention No. 98 and the Gender Equality Act (LEg); deals with the issue of the direct applicability of Convention No. 98 in national law; and analyses Swiss law on unfair dismissal.
37. The position of the Swiss Federal Council
38. 1284. The details given by the Federal Council, in its message concerning the ratification of the Convention, on the protection of workers against acts of anti-union discrimination provided for in Swiss law can be summarized as follows: (1) the principle of freedom of association is contained in the federal Constitution and based on the international instruments ratified by Switzerland, particularly Convention No. 87; (2) as regards acts of anti-union discrimination committed by the employer, workers in the private sector enjoy the general protection of the personality established in section 328 of the CO and section 28 of the Civil Code (CC) and can refer the matter to the civil courts; (3) prior to recruitment, workers are not completely unprotected against certain acts of anti-union discrimination given that, in addition to the abovementioned section 28 of the CC, their protection was increased when the Data Protection Act (LPD) entered into force on 1 July 1993, which particularly led to the introduction of a new section 328(b) in the CO (employers can only access information on workers relating to their ability to carry out their work; therefore, employers do not have the right to ask questions about the opinions or trade union activities of workers, who are not required to provide accurate replies to such questions); in addition, the LPD states that trade union activities come under the category of sensitive data which have special legal status, with the communication of such data to a third party being forbidden without supporting grounds; (4) since 1 January 1989, once an employment relationship is established, workers have enjoyed special protection provided for in section 336, paragraph 2(a), of the CO; if an employer unfairly terminates a contract of employment by reason of trade union membership or trade union activities, he must pay the worker compensation, the amount of which is set by the judge but cannot exceed six months’ salary; this compensation may be in addition to damages paid for other reasons; the employer is under no legal obligation to reinstate the dismissed worker, who is responsible for proving that his or her contract was terminated on anti-union grounds.
39. 1285. In its message, the Federal Council considered that, as regards the protection of workers against acts of anti-union discrimination, the general principle set out in Convention No. 98 was reflected in the Swiss legal system and could therefore be accepted.
40. The issue of reinstatement
41. 1286. The Government maintains that the text of Convention No. 98 does not call for the reinstatement of workers who are unfairly dismissed by reason of trade union activities. It points out that for this reason no case law or practice by the ILO’s supervisory bodies recognizes that the reinstatement of an unfairly dismissed worker is provided for by the text or scope of the Convention. Furthermore, the Government notes that civil courts or labour courts are responsible for dealing with cases of unfair dismissal. The procedure followed by these courts is simplified, non-contentious and quick when the sum involved does not exceed Sw.frs.30,000. The Government emphasizes that, as clearly shown in the message from the Federal Council, in Swiss law, various parliamentary proceedings and case law show that reinstatement is not an option. Furthermore, Swiss law does not differentiate between compensation for anti-union dismissal and that for another type of dismissal. The courts may take into consideration the grounds for dismissal (anti-union or not) in each specific case when determining the amount of compensation.
42. 1287. The Government considers that the complainant organization cannot unilaterally interpret the text of the Convention to arrive at one principle – that of the reinstatement of unfairly dismissed workers – which would then become directly applicable in the national law of a single State. The Government also points out that the complaint fails to define the boundaries and limits that should be imposed on the principle of reinstatement according to the Convention. The Government recognizes that some countries have adopted measures to protect workers against dismissal, going as far as providing for reinstatement in some cases. As regards Switzerland, the Government highlights that the legislature kept to the principles of the equality of the parties and neutrality of the State, and that at present neither Parliament nor the Government intends to establish protection against unfair dismissal which provides for the reinstatement of workers, since such a solution goes against the spirit of Swiss law.
43. 1288. With regard to the penalty for employment discrimination, the Government emphasizes that the aim of the LEg is different to that of the CO. The LEg has the specific aim of effectively promoting the constitutional principle of equality between women and men by prohibiting any discrimination based on gender in respect of employment, whereas the CO governs the rights and obligations of the parties to a contract of employment. Under the LEg, the prohibition of discrimination covers not only wage inequalities, but all aspects of employment relationships, including access to employment and dismissal.
44. 1289. The Government provided the text of section 10 of the LEg which is cited in the complaint and added the following explanations. First, it cites an extract of the comments made by the Federal Council on the draft provision which would later become section 10. After having recalled that wage equality is a constitutional principle which requires that women be in a position to enforce their rights, the Federal Council states that:
45. To enable female workers to effectively exercise their rights during employment relationships, it is necessary to provide for a period of protection during which dismissal can be invalidated. The current situation does not provide sufficient protection. Sections 336 onwards of the Code of Obligations which entered into force on 1 January 1989 only provide for compensation, with dismissal remaining valid. Therefore, this provision does not guarantee wage equality and equal treatment during employment relationships [...]. The bill provides for the voidability of dismissal and not its nullity. Therefore, dismissal will not be void automatically and must be invalidated by the judge ...
46. 1290. The Government states that the solution adopted by the legislature to ensure the promotion of the constitutional principle of equal treatment between men and women therefore lies in the voidability of dismissal, and not in the principle of reinstating the worker. The Government highlights that, moreover, the solution is more flexible given that under paragraph 4, section 10, of the LEg, the worker has the right to abandon the annulment of the dismissal and request compensation under the terms of section 336(a) of the CO. The Government highlights that it and the Swiss Parliament wanted to establish social protection in respect of equal treatment between men and women. To this end, a specific law was adopted which derogates the general principles governing employment relationships. The Government repeats that, on the other hand, there are no clear indications that the legislature intends to offer trade union officials and representatives additional protection in the form of reinstatement.
47. 1291. The Swiss Government considers that Swiss law provides trade union officials and representatives with adequate protection, in full application and full respect of Article 1 of Convention No. 98.
48. Direct applicability
49. 1292. Generally speaking, the Swiss Government states that Switzerland is a State with monist traditions: an international treaty ratified by the Federal Council is an integral part of the Swiss legal system as soon as it enters into force, without the need to transpose it into the national legal system through the adoption of a specific law. However, the Government indicates that, according to case law, “a rule contained in an international agreement in force in Switzerland can only be invoked directly by a citizen in so far as [...] it is unconditional and sufficiently precise in order to have a direct effect, apply as such to a specific case and constitute the basis of a specific decision”. The Government emphasizes that the issue of direct applicability is to a large extent left to the judgement of national bodies, particularly the Swiss courts.
50. 1293. As regards Convention No. 98, the Government points out that the wording of the text is general and that reference is made on several occasions to measures appropriate to national conditions. In Switzerland, the implementation of the Convention is guaranteed by a provision of the Constitution which relates to the principle of freedom of association and by adequate legal requirements.[3] The Government highlights that “no judicial ruling recognizes the direct applicability of Article 1 of Convention No. 98”. Therefore, the Government concludes that this Convention is not directly applicable.
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52. Note [3] : At this point it should be noted that, since the aforementioned message was issued by the Federal Council on Convention No. 98, a new federal Constitution entered into force on 18 April 1999 and section 28 now explicitly refers to the freedom of association of workers and employers.
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54. Swiss law on unfair dismissal
55. 1294. After having reproduced the full text of section 336 and 336(a) of the CO, the Government provides explanations concerning the drafting of these two provisions and indicates that at the time the Federal Council suggested increasing the protection of workers against unfair dismissal.
56. 1295. As regards current section 336, paragraph 2(a) and (b), of the CO (unfair dismissal by reason of union membership or non-membership or legitimate trade union activities, or while an elected workers’ representative is a member of a works council or enterprise institution), the Government states that the Federal Council had proposed a separate provision on the dismissal of “workers’ representatives at the enterprise” that would therefore differ from the provision on unfair dismissal in general. The draft also provided for the payment of twofold compensation as a penalty: compensation based on the draft section referring to the dismissal of workers’ representatives, and compensation based on the general section relating to unfair dismissal. Nonetheless, Parliament adopted a different approach and integrated the protection of workers’ representatives into the general section on unfair dismissal, which led to current paragraph 2(a) and (b), section 336, of the CO. Multiple penalties were removed given that Parliament considered that such an exception for workers’ representatives was not justified since it was an “inadmissible” restriction on the freedom to terminate a contract of employment.
57. 1296. With reference to section 336(a), paragraph 2, of the CO (compensation for unfair dismissal), the Federal Council had initially set the maximum amount at 12 months’ salary. At that time, it had stated that this amount, which was admittedly high, “highlighted the preventive nature of compensation and must prevent cheap pay-offs for unfair dismissal”. In addition, the Federal Council had explicitly excluded the possibility of penalizing unfair dismissals through their nullity or voidability or the reinstatement of the worker, given that “prolonging employment relationships against the will of the parties is inappropriate, even unachievable”. Parliament reduced the amount of compensation to six months’ salary since this amount appeared to be sufficient to act as a deterrent “in view of average salaries in Switzerland (for example, six months’ salary in low grade jobs amounts to Sw.frs.20,000 ...) [...], especially given that a large majority of workers in Switzerland are employed by small enterprises, for which this amount is already very high”.
58. 1297. Lastly, the Government adds that “workers’ representatives in enterprises” enjoy better protection than that provided against other types of unfair dismissal: in section 336, paragraph 2(b), of the CO, dismissal is unfair when issued while the worker is a workers’ representative and without good reason (justified grounds for dismissal must be provided by the employer). As regards other types of dismissal, including those on the grounds of union membership or non-membership and trade union activities, dismissal is unfair if unacceptable reasons are given for the dismissal.
59. 1298. Therefore, the Government concludes that the penalty for unfair dismissal is an effective deterrent. Therefore, a specific legal provision providing additional protection against anti-union discrimination is not necessary.
60. 2. Part II
61. 1299. In this part, the Government outlines Switzerland’s policy on the ratification of international labour agreements; describes the ratification procedure of Convention No. 98 followed by the Swiss Government and Parliament; provides information on the current political context regarding the issue of the unfair dismissal of workers’ representatives at the enterprise; briefly describes the provisions, other than those already mentioned in its reply, which protect unionized workers and workers’ representatives; and presents case law on unfair dismissal.
62. Switzerland’s policy on the ratification
63. of international labour agreements
64. 1300. The Government explains that Switzerland ratifies international labour agreements “if there is no fundamental difference between [this] agreement and the national legal system”. If there are “minor differences”, ratification can take place when it is possible to bridge gaps through the provisions of the agreement which would be directly applicable or through the adoption of legislative measures. The Government states that this policy had been made more flexible for the ILO core Conventions.
65. The ratification procedure of Convention No. 98
66. followed by the Swiss Government
67. 1301. On 2 September 1998, the Federal Department of Economic Affairs put forward the suggestion to the Federal Council that Convention No. 98 be ratified. This proposal and the draft message providing for the ratification of the Convention were the subject of preliminary consultations within all of the relevant departments of the federal administration. These consultations did not lead to the conclusion that it was necessary to adopt legislative measures to ratify the Convention.
68. 1302. The proposal made by the Federal Department of Economic Affairs to the Federal Council highlighted a number of arguments in favour of ratification. Among other things, the Department pointed out that if the ratification of the Convention had not been proposed previously, this had been owing to the lack of a specific provision in Swiss law to protect workers against acts of anti-union discrimination prior to recruitment. This divergence had since been rectified with the adoption of the Data Protection Act. Between the referral to the Federal Council on 2 September 1998 and its decision, federal departments had the opportunity to make additional proposals. The Government indicates that no proposals were put forward. On 21 September 1998, the Federal Council decided to propose the ratification of Convention No. 98 to the Swiss Parliament, without submitting legislative amendments to increase the protection of trade union representatives, for example, through provisions for their reinstatement following dismissal.
69. The procedure followed by the Swiss Parliament
70. 1303. The ratification of the Convention took place in two stages: discussions within the relevant committees of the two chambers, followed by discussions and a decision in plenary. The Government highlights that in neither of the two committees was a proposal made for a legislative amendment relating to the protection of trade union representatives, or even to their reinstatement following dismissal. Both committees adopted the federal order providing for ratification. After having considered the report of their respective committees and the message of the Federal Council, the two chambers unanimously approved the order providing for ratification.
71. 1304. The Government emphasizes that at no point during the ratification procedure, and although it had complete freedom to do so, did Parliament request an increase in the protection of trade union representatives through an amendment to section 336 and 336(a) of the CO, even though parliamentary proceedings on this issue were already pending.
72. The current political context
73. 1305. The Government indicates that some parliamentary proceedings relating to the provisions of the CO on unfair dismissal – and reproduced in full in the reply – have been tabled. The following elements taken from the summary provided by the Government should be noted.
74. 1306. A motion, tabled on 28 April 1997, particularly requested the Federal Council to amend the CO and the Employee Participation Act (Lpart) so as to establish real protection for trade union activists within the enterprise and to grant them a particular status. This motion was particularly aimed at extending the rights given to workers’ representatives to all trade union activists at the enterprise and at providing for the nullity of dismissal and the reinstatement of workers’ representatives and trade union activists who suffer from unfair dismissal. The author of the motion considered that the protection provided by section 336 of the CO, although not insignificant, was not sufficient.
75. 1307. As regards section 336 of the CO, the Federal Council replied that the distinction made between the protection of elected workers’ representatives and that of workers conducting trade union activities was justified, since representatives must have better protection against unfair dismissal than workers carrying out trade union activities generally outside the enterprise. The Federal Council adds that “the motion’s request to declare notice of dismissal given to workers’ representatives and workers involved in trade union activities as unfair, and consequently void, goes against the system of protection against dismissal provided for in Swiss law”. As regards Lpart, which relates to information and consultation with workers within the enterprise, the Federal Council said that it was willing “to propose amendments to Parliament if it became apparent that the rights granted to workers’ representative were ineffective”. On 5 March 2003, when the author of the motion recalled his motion in an ordinary question and stated that it had not led to any proposals, the Federal Council had to “firmly” reject his request to increase protection against the unfair dismissal of workers’ representatives and workers involved in trade union activities. The Federal Council highlighted that it would not propose a revision of the CO as far as trade union militants were concerned, but was willing to examine an increase in the protection of workers’ representatives against unfair dismissal.
76. 1308. A parliamentary initiative submitted on 4 October 1999 requested the Swiss Parliament to amend section 336, paragraph 1(d) (general protection against unfair dismissal), so as to reverse the burden of evidence: the party terminating the contract should prove the legitimacy of the termination. The Swiss Parliament has not followed up this initiative.
77. 1309. A motion dated 17 April 2002 requested an increase in protection against the dismissal of officials representing workers on boards establishing pension funds. The author of the motion considered that, in order for protection against dismissal to be effective, it was necessary to provide for: (1) the annulment by the judge of the termination of the contract of employment (similar to that provided for by the LEg); (2) the impossibility of terminating a contract during the period of office unless the conditions for “immediate termination” are met. The Federal Council stated that it was willing to consider the possibility of improving the protection of elected workers’ representatives against unfair dismissal. However, following opposition, the National Council (peoples’ chamber) decided to dismiss the issue. Lastly, the Government refers to a parliamentary question submitted by the socialist group on 19 June 2003 which has still not been addressed. This parliamentary question requested increased protection against dismissal for elected representatives in view of the enlargement of the European Union and the extension of the bilateral agreement between Switzerland and the enlarged European Union (particularly given the risks of “social dumping” and “wage undercutting” which could result in the arrival of workers from Central and Eastern European countries in the labour market).
78. 1310. The Government emphasizes that the Swiss Parliament did not follow up the parliamentary questions relating to the reinstatement of dismissed workers.
79. Other provisions in Swiss law
80. to be taken into consideration
81. 1311. Lpart does not require any protection for trade union members, who cannot be elected to represent workers in an enterprise if they do not work at that enterprise. On the other hand, section 12 of Lpart provides for the protection of elected workers’ representatives at the enterprise:
82. (1) The employer does not have the right to prevent workers’ representatives from carrying out their mandate.
83. (2) The employer must not discriminate against workers’ representatives during or after their period of office by reason of this activity. This protection also covers people standing for election as workers’ representatives.
84. 1312. Lpart provides protection only when there is a relationship between dismissal and the activities of workers’ representatives. This protection is complemented by the provisions of paragraph 2(a) and (b), section 336, of the CO which apply when a worker is dismissed by reason of his or her trade union activities during the period of office as workers’ representative.
85. 1313. Section 48 of the Labour Act (LTr) relates more specifically to the right of workers or their representatives to be informed or consulted. It makes no specific provisions for unionized workers, and its provisions do not directly relate to the protection of workers, which is dealt with by the CO. Trade unions have the right of appeal against decisions made by virtue of the LTr. The Government highlights that this right of appeal can be widely exercised in practice and provides a good level of protection for unionized (or non-unionized) workers. Trade unions often exercise this right. The Government also emphasizes that workers have the right to hold discussions with the labour inspector without their employer being present.
86. 1314. Lastly, the Government refers to attendant measures in the form of bilateral agreements between Switzerland and the European Union which were adopted by Parliament on 8 October 1999, and states that they do not contain any provisions relating to the protection of unionized workers or workers’ representatives. The Government indicates that this issue is included in the claims made by USS within the context of the extension to ten new countries of the agreement on the free movement of persons concluded between Switzerland and the European Union.
87. Cantonal and Federal Supreme Court (TF)
88. case law on unfair dismissal
89. 1315. The Government states that case law relating to section 336 and 336(a) of the CO is abundant and mainly relates to qualifying various examples of unfair dismissal. Case law on the amount of compensation is less common. As regards the principle and nature of compensation, the Government cites in particular a ruling by the Federal Supreme Court which states that such compensation has two purposes since it is punitive and compensatory. It does not represent damages in the traditional sense of the term in that it is due even if the victim does not provide evidence of injury or has not suffered any form of injury.
90. 1316. The Government also refers to a ruling by the Federal Supreme Court which states that the judge has discretionary power to set the amount of compensation to be paid within the maximum amount established by law. This discretionary power is exercised whilst respecting the principle of equality and takes into account the following elements: the seriousness of the debtor’s misconduct and its financial capability; the duration of the employment relationship; the economic effects of dismissal; the concomitant misconduct of the dismissed worker.
91. 1317. The Government refers to several examples of case law – some of which are cited by USS – on the amount of compensation, highlighting that the amount reflects the circumstances of each case: (1) a ruling by the Civil Court of Neuchatel on 28 January 1991 which states that “the fact that during the preparatory work the compensation envisaged went from 12 to nine months, and then to six, leads one to believe that the employer must expect a ‘sentence’ close to the maximum, particularly so that the compensation maintains its role”; indeed in this example, which is the fifth example cited by the complainant organization, the court sentenced the enterprise to pay six months’ salary; (2) in another case, the Appeals Chamber of the Labour Court of Geneva awarded compensation to the amount of five months’ salary to a worker employed for 31 years and dismissed because of his trade union activity (seventh example cited by USS); (3) in one case, in view of the worker’s conduct, the Federal Supreme Court awarded compensation amounting to four months’ salary; (4) in the eighth example mentioned by USS, the First Civil Court of the Appeals Court of the Canton of Tessin set the amount of compensation at three months’ salary on the basis of the amount provided for by the sector’s collective labour agreement in such cases.
92. The status of members of works councils:
93. Case law on the protection granted under
94. section 336, paragraph (2), subparagraph (b),
95. of the CO
96. 1318. From the examples cited by the Government, the following should be noted. In the aforementioned ruling by the Civil Court of Neuchatel on 28 January 1991, it is stated that the increased protection granted by this provision merely requires that the worker was a member of a works council or enterprise institution at the time of dismissal and dismissal does not have to be caused by one of the circumstances listed in this section. In the sixth case cited in the complaint, the Appeals Court of the Canton of Tessin recognized that the protection granted by this provision also applies to workers’ representatives in a welfare foundation established at an enterprise.
97. 1319. As regards the burden of evidence, a ruling handed down by the Federal Supreme Court on 12 August 1997 considers that the burden of evidence has been reversed: the employer is responsible for providing the evidence of justified grounds for dismissal and evidence that dismissal was indeed caused by this reason. The Government indicates that, according to the Federal Supreme Court, justified grounds are “when the employer, acting in a rational and level-headed manner, cannot avoid dismissing the worker as a last resort”. Lastly, if purely objective reasons, such as economic difficulties within the enterprise, can justify the dismissal of a workers’ representative, the Government indicates that the judge cannot “only refer to the general difficulties of the economic sector considered”.
98. 3. Part III
99. 1320. In this part, the Government provides additional information to that submitted by USS on the examples cited in the complaint and, above all, on those cases which are still pending. As regards those cases for which a ruling has already been handed down, the Government indicates that it will not go into any further details regarding these cases. Generally speaking, the Government highlights that all of the cases were dealt with according to the rules of a fair trial, with due respect for rules of procedure and the rights of the parties, particularly when the parties chose to come to an out-of-court agreement in private.
100. 1321. As regards the first example, the Government summarizes the position of the worker and that of the enterprise. In its reply of 18 July 2003, the enterprise concludes that the complainant’s pleadings should be rejected. With figures to support its claim, the enterprise describes its “worrying” economic situation. It recognizes that it opted for individual yet fair dismissals, instead of mass dismissals, as part of large-scale restructuring. The complainant’s case is straightforward. He was dismissed because his post was abolished owing to the fact that the enterprise had had to abandon the entire sector of activity in which the complainant was employed. The enterprise states that the complainant’s involvement in the council founding the pension fund is not related to his dismissal; therefore, the complainant cannot invoke the application of section 336, paragraph 2(b), of the CO. The enterprise does not refer to his membership of FTMH or his trade union activities.
101. 1322. The Government states that an arbitration attempt between the parties failed on 29 August 2003 and that a proposal for an out-of-court settlement has since been suggested.
102. 1323. As regards the second case, the Government recalls the position of the worker as shown in her legal proceedings of 9 December 2002. The Government notes that these proceedings do not make any reference to the legal provisions applicable to the case. With regard to the enterprise, the Government indicates that the federal authorities are not aware of its position. From the various documents brought to the Government’s attention, it appears that the enterprise stresses the fact that the complainant resigned from the works council on 22 January 2002 of her own free will. Therefore, it appears that at the time of her dismissal she was no longer a member of the works council. Moreover, in light of the letter of dismissal and the service certificate given to the person concerned, it appears that the employment relationship was terminated on economic grounds.
103. 1324. The proceedings are pending. An arbitration attempt on 10 June 2003 failed. The Government highlights that since the case has not been tried (the information from the Government dates back to the beginning of December 2003), there is no element to qualify this as unfair dismissal on anti-union grounds.
104. 1325. As regards the third example, based on the document submitted by the parties, the Government presents the following elements. The enterprise gave notice of dismissal on 29 October 2002 on economic grounds. Through his counsel, the worker opposed his dismissal, claiming that it was unfair, in violation of section 336, paragraph 2, of the CO. He requested either his reinstatement or the payment of compensation corresponding to six months’ salary. In its reply to this opposition, the works council stated that the enterprise could not confirm that the worker in question was appointed president of the works council since he had resigned and the enterprise had not been notified of the election of a new president. The enterprise denied that it had terminated the contract of employment because of the worker’s trade union activities. It highlights that, owing to its financial situation, it had been forced to completely shut down its machine shop where the worker in question had been the only employee. The Government confirms that an agreement was concluded between the parties on 7 February 2003 under the terms stated in the complaint. The worker’s counsel noted that the agreement corresponded to a proposal made by the court. The enterprise repeated that the complainant had been dismissed for economic reasons and that the case had not gone to court. No ruling would come to the conclusion that the worker had been dismissed because of his trade union activities.
105. 1326. As regards the fourth example, the Government states that the worker in question initiated legal proceedings on 14 December 1998 for unfair dismissal. In his claim, he recalled his terms of appointment since 1988 and that he was president of the staff committee. It was in this capacity that he reportedly advised staff not to sign new contracts which had been drawn up by the enterprise and contained a reduction in annual leave. Through the letter dated 27 May 1998, he was dismissed for economic reasons by his employer. He opposed his dismissal, which he considered to be unfair under the terms of section 336, paragraph 1(d) and paragraph 2(a) and (b), of the CO. The enterprise highlights that the dismissal was based on strictly economic grounds. An arbitration attempt failed. The Government indicates that the statement of the hearing and ruling handed down by the Labour Court, dated 19 August 1999, sentenced the enterprise to pay compensation to the amount of Sw.frs.14,217 and stated that “all other and more generous verdicts are rejected”. The Government highlights that since it was not necessary to state the grounds for the ruling, it does not refer explicitly to unfair dismissal, or to a specific legal basis. The Government adds that no appeal was lodged against this statement or ruling and that the enterprise went bankrupt in 2001.
106. 1327. As regards the fifth example, the Government highlights that it has already mentioned the relevant ruling in Part II of its reply (paragraphs 58 and 59) and that it does not intend to go back over this ruling, other than to note that it was issued by a judicial body to which cases are regularly referred and that, presented with a case of unfair dismissal, the judge had applied the principle of equity.
107. 1328. As regards the sixth example, the Government highlights that it has already mentioned the relevant ruling in Part II of its reply (paragraph 59). It confirms that the court recognized that the dismissal was unfair and ordered the payment of compensation amounting to one-and-a-half months’ salary. The Government does not intend to go back over this ruling, other than to note that it was issued by a judicial body to which cases are regularly referred and that the principle of equity was applied. As regards the seventh example, the Government has already mentioned the ruling handed down in this case in Part II of its reply (paragraph 58) which recognized that the employer was guilty of serious misconduct. The Government does not intend to go back over this ruling, other than to note that it was issued by a judicial body to which cases are regularly referred and that the principle of equity was applied.
108. 1329. With reference to the eighth example, the Government confirms that the dismissal was recognized as unfair. Since the Government has already mentioned the ruling handed down in this case in Part II of its reply (paragraph 58), it does not intend to go back over this ruling, other than to note that it was issued by a judicial body to which cases are regularly referred and that the principle of equity was applied.
109. 1330. As regards the ninth example, the Government highlights that the following details should be noted. The ruling, extracts of which were sent by USS, was overturned by the Court of Appeal of Berne. The parties finally concluded an agreement in private. Furthermore, the request for information made by the Government to the relevant court in Berne was denied given that the parties concluded an agreement in private.
110. 1331. As regards the tenth example, the Government states that the enterprise dismissed the worker with immediate effect owing to his refusal to work an extra 30 minutes per day, in keeping with the provisions of the relevant collective agreement. As far as the enterprise is concerned, this refusal to work an extra 30 minutes per day was the sole reason for the worker’s dismissal. The Government notes that the agreement finally concluded in private between the two parties states that the payment to be made by the enterprise is based on section 337 of the CO, namely the provision relating to immediate and unfair dismissal. Therefore, there is no ruling sentencing the enterprise, under section 336, paragraph 2(a), of the CO, for unfair dismissal on the grounds of the worker’s trade union activities.
111. 1332. As regards the eleventh example, the Government recalls that there were two subsequent rulings and summarizes the ruling handed down by the appeals chamber cited above (paragraph 20).
112. 4. Part IV
113. 1333. The Government concludes by highlighting that Swiss law provides trade union officials and representatives with adequate protection, thus fully implementing Article 1 of Convention No. 98. Parliament considers that the compensation provided for in respect of unfair dismissal, which can amount to a maximum of six months’ salary, is an effective deterrent given that a large majority of Swiss enterprises are small and medium-sized enterprises (SMEs). Parliament did not wish to introduce into Swiss labour contract law the principle of the reinstatement of dismissed workers which, in any case, is not required by the Convention or the ILO’s supervisory bodies. The system provided for by Swiss law is the result of a democratic decision confirmed by several parliamentary proceedings. Therefore, there is no question of proposing a legislative amendment by establishing additional protection against acts of anti-union discrimination, with such protection being doomed to failure. When setting the amount of compensation to be granted to the worker, the judge implements the principle of equity and takes into account all of the objective and subjective circumstances. The Government highlights that during the ratification procedure of Convention No. 98, no request was made to amend legislation so as to increase the protection given to workers against unfair dismissal.
114. 1334. The Government adds that: (1) Convention No. 98 is not directly applicable in Switzerland; (2) Convention No. 135 is not binding in Switzerland, given that it has not been ratified and is not a core Convention; (3) the cases cited by USS were all given due process and the rights of the parties were respected.

C. The Committee’s conclusions

1. 1335. The Committee notes that the complaint raises the issue of whether national legislation and practice guarantee trade union officials and representatives within enterprises with adequate protection against anti-union dismissal, in keeping with Article 1 of Convention No. 98, which has been ratified by Switzerland.
   • Main arguments given by the complainant
   • organization and the Government
2. 1336. The Committee notes that the complainant organization alleges that national legislation – namely section 336 and 336(a) of the Code of Obligations (CO) – does not meet the requirements of Convention No. 98, in that it does not provide for the possibility of ordering the reinstatement of trade union representatives who have been dismissed on anti-union grounds and that, furthermore, the compensation provided for in such cases is nominal and fails to act as a deterrent. Indeed, by virtue of section 336(a) of the CO, the amount of compensation is set by the judge and cannot exceed six months’ salary, and in recent years in most cases the courts have allocated a maximum of three months’ salary.
3. 1337. The Committee notes that the complainant organization states that, under national legislation, reinstatement is provided for only in cases of unfair dismissal which violate the principle of equal treatment between women and men (section 10 of the Federal Act of 24 March 1995 on equality between women and men – Gender Equality Act (LEg)). Trade union representatives should have the same kind of protection given that they are the first to be able to inform workers of their rights relating to equal treatment. To support its allegations, the complainant organization presents 11 examples of dismissals which it believes show the extent of anti-union practices at the national level.
4. 1338. The Committee notes that the Government considers that national legislation provides adequate protection to trade union officials and representatives against acts of anti-union discrimination, and does so in keeping with Article 1 of Convention No. 98. The drafting of section 336 and 336(a) of the CO demonstrates that the legislature had the specific intention of increasing the protection of workers against unfair dismissal. The compensation provided for by section 336(a) of the CO, which can amount to a maximum of six months’ salary, is an effective deterrent given that a large majority of Swiss enterprises are small and medium-sized enterprises (SMEs). This compensation is set at the discretion of the judge, taking into account all of the relevant circumstances, and through a simplified, non-contentious and quick procedure when the sum involved does not exceed Sw.frs.30,000. Furthermore, the protection of workers’ representatives against unfair dismissal, provided for in section 336, paragraph 2(b), of the CO, is greater than that provided in other cases of unfair dismissal. Indeed, in this case, dismissal is unfair when notice of dismissal is issued whilst the worker in question represents workers on a works council, and in the absence of justified grounds for termination, which must be provided by the employer. Therefore, a specific legal provision providing additional protection against anti-union discrimination is not necessary.
5. 1339. The Committee notes that the Government emphasizes that Convention No. 98 does not require the reinstatement of workers dismissed on anti-union grounds, and that neither is this required by the bodies supervising the implementation of the Convention. Therefore, as regards equal treatment, LEg aims to promote effectively the constitutional principle of equality between women and men by prohibiting any gender-based discrimination in respect of employment. The solution adopted by the legislature to this end is the voidability of dismissal and not the principle of reinstating the worker; furthermore, the person concerned has the right to withdraw the annulment of dismissal and request compensation under section 336(a) of the CO.
6. 1340. Lastly, the Committee notes that beyond the protection against dismissal, the Government provides explanations on the general protection provided against acts of anti-union discrimination. In this respect, it highlights that, during the ratification procedure of the Convention, the national authorities had not observed fundamental differences between the Convention and national legislation. In its message on ratification, the Federal Council had pointed out that: (1) in addition to the general protection of personality, which can be invoked in cases of anti-union discrimination, workers enjoy protection prior to recruitment through the Data Protection Act (LPD); (2) workers enjoy special protection under section 336, paragraph 2(a), of the CO. As regards the examples cited by the complainant organization, the Government indicates that they were all given (and some are still being given) due process of law in which the rights of the parties were respected.
   • National legislation and practices
7. 1341. The Committee notes that trade union representatives are protected against anti-union dismissals by virtue of section 336, paragraph 2, of the CO, section 336 being the general provision on unfair dismissal. In this respect, the Committee notes that the Federal Council had initially proposed a separate provision on the protection of workers’ representatives at enterprise level against dismissal, and that Parliament finally decided to integrate this protection into the general section on unfair dismissal.
8. 1342. The Committee notes that paragraph 2, section 336, of the CO differentiates between unfair dismissal by reason of trade union membership or legitimate trade union activities (paragraph 2(a)) and notice of dismissal issued while the worker, who is an elected workers’ representative, is on a works council or a member of an enterprise institution (paragraph 2(b)). The Committee took due note of the explanations given by the Government and the rulings highlighting that protection in the latter case is increased; dismissal is unfair simply because the worker is a member of a works council or an enterprise institution, in which case the employer is responsible for providing justified grounds for dismissal. In addition, the Committee notes that when workers cannot assert this increased protection, they must provide evidence that their dismissal occurred by reason of their trade union membership or legitimate trade union activities. However, the rulings brought to the knowledge of the Committee show that the judge takes into account the fact that it is difficult to provide such evidence and presumes that dismissal is unfair when the worker has provided sufficient indications to “make the reasons given by the employer appear fictitious”.
9. 1343. The Committee notes that all cases of unfair dismissal, including those covered by paragraph 2, section 336, of the CO, result in the payment of compensation provided for by section 336(a) of the CO. This amount is set by the judge according to all of the relevant circumstances and within the limit set by this section, namely six months’ salary. In this respect, the Committee notes that the Federal Council had initially proposed in cases of the dismissal of workers’ representatives, on the one hand, the payment of twofold compensation (compensation based on the specific provision on workers’ representatives and compensation based on the general provision on unfair dismissal) and, on the other hand, a maximum amount of 12 months’ salary as compensation to be paid to the victims of unfair dismissal. The Committee took due note of the elements which are taken into account by judges to set the amount of compensation and points out that case law considers this compensation to have two purposes: it must provide the unfairly dismissed worker with compensation whilst at the same time penalizing the employer. This compensation is payable even when the injury criterion is not met or injury has not occurred.
10. 1344. Lastly, the Committee notes that civil courts or labour courts are responsible for identifying cases of unfair dismissal and that the procedure before these courts is simplified, non-contentious and quick when the sum involved does not exceed Sw.frs.30,000. In some cases parties reach an agreement, thus making it possible to resolve their dispute more quickly.
    • Assessment of national legislation and practices in light of the principles of freedom of association
11. 1345. As noted by both the complainant organization and the Government, paragraph 1, Article 1, of Convention No. 98 requires that “workers shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment”. Article 3 of the Convention stipulates that “machinery appropriate to national conditions shall be established, where necessary, for the purpose of ensuring respect for the right to organize as defined in the preceding Articles”.
12. 1346. On the basis of these two Articles, the Convention does not stipulate a specific model of protection against acts of anti-union discrimination, but does generally oblige States to ensure adequate protection by establishing, where necessary, “machinery appropriate to national conditions”. The Committee highlights that, according to the principles of freedom of association recalled below, this protection is made up of various elements, and that penalties (in the broad sense and including all measures, including compensatory measures) are an important element.
13. 1347. In general terms, the Committee recalls that legislation should lay down explicitly remedies and penalties against acts of anti-union discrimination in order to ensure the effective application of Article 1 of Convention No. 98 [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 697]. More particularly, as regards trade union leaders and representatives, one of the fundamental principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment, such as dismissal, demotion, transfer or other prejudicial measures. This protection is particularly desirable in the case of trade union officials because, in order to be able to perform their trade union duties in full independence, they should have a guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions. The Committee has considered that the guarantee of such protection in the case of trade union officials is also necessary in order to ensure that effect is given to the fundamental principle that workers’ organizations shall have the right to elect their representatives in full freedom [see Digest, op. cit., para. 724].
14. 1348. As regards procedures to ensure the effectiveness of Article 1 of Convention No. 98, the Committee shall recall the following principles: (1) the Committee highlighted that the existence of basic legislative provisions prohibiting acts of anti-union discrimination is not sufficient if these provisions are not accompanied by effective procedures ensuring their application in practice. Thus, for example, it may often be difficult, if not impossible, for a worker to furnish proof of an act of anti-union discrimination of which he has been the victim. This shows the full importance of Article 3 of Convention No. 98, which provides that machinery appropriate to national conditions shall be established, where necessary, to ensure respect for the right to organize [see Digest, op. cit., para. 740]; (2) besides preventive machinery to forestall anti-union discrimination (such as, for example, a request for the prior authorization of the labour inspectorate before dismissing a trade union leader) a further means of ensuring effective protection could be to make it compulsory for each employer to prove that the motive for the decision to dismiss a worker has no connection with the worker’s union activities [see Digest, op. cit., para. 752]; (3) respect for the principles of freedom of association clearly requires that workers who consider that they have been prejudiced because of their trade union activities should have access to means of redress which are expeditious, inexpensive and fully impartial [see Digest, op. cit., para. 741].
15. 1349. The Committee notes that in many respects national legislation and practices are in keeping with the abovementioned principles. Indeed, national legislation provides protection against acts of anti-union discrimination, and the issue was carefully examined by the Swiss authorities during the ratification of Convention No. 98. Although the present case relates only to anti-union dismissals, the Committee notes that the Data Protection Act (LPD) provides workers with specific protection against acts of anti-union discrimination when they are appointed. The Committee also notes that there is also specific protection against anti-union dismissal and for elected workers’ representatives. The Committee has also duly noted the observations made by the Government on section 12 of the Employee Participation Act (Lpart) on the protection of elected workers’ representatives at the enterprise which is supplemented by section 336, paragraph 2(a) and (b), of the CO. Lastly, the Committee notes the reversal of the burden of evidence, stipulated by law, when an elected workers’ representative is dismissed, and the reduction in the burden of evidence, accepted by the courts, for workers who allege to be the victims of anti-union dismissal but are not elected workers’ representatives.
16. 1350. The Committee also notes the explanations provided by the Government on the judicial procedure for acts of anti-union discrimination. Indeed, the Committee notes the following timescales of some of the examples cited in the complaint: in the third example, a little more than three months passed between the notification of dismissal and the conclusion of the agreement that put an end to the dispute; in the fourth example, a little more than eight months passed between the institution of legal proceedings and the ruling; in the eleventh example, eight months passed between the institution of legal proceedings and the ruling in the first instance, little more than four months passed between this ruling and that handed down by the appeals chamber.
17. 1351. As regards the penalty as such, the Committee shall recall the following principles: (1) the Committee has stated that it would not appear that sufficient protection against acts of anti-union discrimination, as set out in Convention No. 98, is granted by legislation in cases where employers can in practice, on condition that they pay the compensation prescribed by law for cases of unjustified dismissal, dismiss any worker, if the true reason is the worker’s trade union membership or activities [see Digest, op. cit., para. 707; see also the 326th Report, Case No. 2116, para. 592; the 332nd Report, Case No. 2262, para. 394; the 333rd Report, Case No. 2186, para. 351]; (2) legislation must make express provision for appeals and establish sufficiently dissuasive sanctions against acts of anti-union discrimination to ensure the practical application of Articles 1 and 2 of Convention No. 98 [see Digest, op. cit., para. 743]. With regard to the issue of reinstatement in cases of anti-union dismissal, the Committee recalls that: (1) no one should be subjected to anti-union discrimination because of his or her legitimate trade union activities and the remedy of reinstatement should be available to those who were victims of anti-union discrimination [see Digest, op. cit., para. 755]; and (2) the necessary measures should be taken so that trade unionists who have been dismissed for activities related to the establishment of a union are reinstated in their functions, if they so wish [see Digest, op. cit., para. 757].
18. 1352. In this instance, the Committee notes that the maximum amount of compensation provided for by section 336(a) of the CO was set by Parliament to act as a deterrent, taking into account the following national circumstances: the average national salary and the fact that a large majority of workers are employed by SMEs. The Committee notes that the courts consider that compensation must provide redress as well as act as a penalty and that it is payable simply because of the unfair nature of dismissal, without the worker having to provide evidence of injury.
19. 1353. However, the Committee notes that the compensation envisaged for cases of unfair dismissal is the same regardless of whether the worker is dismissed by reason of his or her trade union membership, legitimate trade union activities, or mandate on a works council, or for other unjustified reasons. In this respect, the Committee notes that the Government explains clearly that “the law makes no differentiation between compensation payable in cases of anti-union dismissal and that payable for other types of dismissal … the courts may take into consideration the reasons for dismissal (which may be anti-union or not) when setting the amount of compensation to be paid in each specific case”. The Committee notes that in the examples provided by the complainant organization, particularly the eighth and eleventh examples, the courts did not systematically grant the maximum amount of compensation for cases of anti-union discrimination. The Committee also notes the allegation made by the complainant organization that “in recent years, in most cases the courts have only allocated a maximum of three months’ salary”. Although the Committee is not in a position to verify the legitimacy of this allegation using only the 11 examples, some of which show that the maximum amount is granted by courts when they believe it to be appropriate, the Committee notes that the Government has not clearly rejected this allegation.
20. 1354. It follows from the preceding paragraph that, in terms of the national legislation and practice, the maximum compensation that can be received by a dismissed worker is the same for dismissals based on anti-union reasons as for other cases of unfair dismissal. The courts can, however, take the motive for the dismissal into account in setting the amount of the compensation. Moreover, the Committee notes that, in the light of the information provided by the Government, the national legislation provides for the voidability of dismissal in cases of violation of the principle of equality of treatment, which is a principle enshrined in the Constitution of the country, as is freedom of association. Finally, the Committee notes that, within the framework of the Swiss federal public service, the annulment of the termination of the contract of an employee is possible in certain cases.
21. 1355. Taking into account the preceding paragraphs, the Committee invites the Government, together with the employers’ and workers’ organizations, to examine the present situation in law and in practice as concerns protection against anti-union dismissals in order that, in the light of the principles set out above and if the tripartite discussion considers it necessary, measures are taken so that such protection is truly effective in practice.

The Committee's recommendations

1. 1356. In light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • The Committee invites the Government, together with the employers’ and workers’ organizations, to examine the present situation in law and in practice as concerns protection against anti-union dismissals in order that, in the light of the principles set out above and if the tripartite discussion considers it necessary, measures are taken so that such protection is truly effective in practice. The Committee requests the Government to provide it with information on the evolution of the situation dealt with in the case.

Appendix

1. III. Protection against dismissal
2. 1. Unfair dismissal
3. A. Principle
4. SECTION 336 [4]
5. 1. Dismissal is unfair when notice is given by one party:
6. (a) for a reason inherent to the personality of the other party, unless this reason is linked to the employment relationship or, in a key area, is of serious detriment to work within the enterprise;
7. (b) by reason of the exercise by the other party of a constitutional right, unless the exercise of this right violates an obligation resulting from the contract of employment or, in a key area, is of serious detriment to work within the enterprise;
8. (c) merely to forestall legal claims made by the other party, resulting from the contract of employment;
9. (d) because the other party asserts in good faith claims resulting from the contract of employment;
10. (e) [5] because the other party performs compulsory, military or civil defence service, or a public service, by virtue of federal legislation, or because said party fulfils a legal obligation without having volunteered to do so.
11. 2. Notice of dismissal given by the employer is also unfair:
12. (a) by reason of the worker’s membership or non-membership of a workers’ organization or legitimate trade union activities;
13. (b) while the worker, who is an elected workers’ representative, is a member of a works council or enterprise institution and the employer cannot prove that there were justified grounds for dismissal.
14. (c) [6] when it fails to respect the consultation procedure provided for collective dismissals (section 335f).
15. 3. In the cases provided for in paragraph 2, subparagraph (b), the protection given to a workers’ representative whose period of office has come to an end owing to the transfer of an employment relationship (section 333) is maintained until the same date on which this period of office would have expired had the transfer not occurred. [7]
16. B. Penalty
17. SECTION 336(A) [8]
18. 1. The party who unfairly terminates the contract must pay the other party compensation.
19. 2. The compensation is set by the judge, taking into account all of the circumstances; however, it cannot exceed an amount corresponding to six months’ salary of the worker. There is no prejudice to damages that might be payable for other reasons.
20. 3. For cases of unfair dismissal under section 336, paragraph 2, subparagraph (c), compensation cannot exceed an amount corresponding to two months’ salary of the worker. [9]
21. *****************************************
22. Notes:
23. [4] New content according to Chapter I of the Federal Act of 18 March 1988, in force since 1 January 1989 (RO 1988 1472 1479; FF 1984 II 574).
24. [5] New content according to Chapter III of the appendix to the Federal Act of 6 October 1995 on the civil service, in force since 1 October 1996 (RS 824.0).
25. [6] Introduced by Chapter I of the Federal Act of 17 December 1993, in force since 1 May 1994 (RO 1994 804 807; FF 1993 I 757).
26. [7] Introduced by Chapter I of the Federal Act of 17 December 1993, in force since 1 May 1994 (RO 1994 804 807; FF 1993 I 757).
27. [8] New content according to Chapter I of the Federal Act of 18 March 1988, in force since 1 January 1989 (RO 1988 1472 1479; FF 1984 II 574).
28. [9] Introduced by Chapter I of the Federal Act of 17 December 1993, in force since 1 May 1994 (RO 1994 804 807; FF 1993).
29. ********************************************