Rapport intérimaire - Rapport No. 343, Novembre 2006

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

Allegations: 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 which may not in any event exceed six months’ salary

1065. The Committee examined the substance of this case at its session in November 2004, when it submitted an interim report to the Governing Body [see 335th Report, paras. 1260-1356.]

1. 1066. The Swiss Federation of Trade Unions (USS) supplied additional information in a communication dated 7 April 2006.
2. 1067. The Government sent communications on the following dates: 30 November 2004; 8 March, 27 April, 25 August and 13 December 2005; 17 and 27 January, 21 April, 19 June and 5 October 2006.
3. 1068. 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. Previous examination of the case

1. 1069. At its November 2004 meeting, the Committee made the following recommendations:
2. 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.
3. B. Additional information
4. 1070. In its communication dated 7 April 2006, the USS indicates that, following the report of the Committee, discussions were held in the Tripartite Federal Commission for ILO Affairs (hereinafter, the Federal Commission) between representatives of the Government, employers, the USS and Travail.Suisse (the second trade union confederation in the country). According to the USS, discussions are blocked, as the employer’s representatives are opposed to any improvement in the protection of trade union officials and elected workers’ representatives, despite the compromise proposals made by the USS (see Appendix 1). In view of this opposition, the Swiss Government appears to consider that it is not in a position to take action.
5. 1071. In practice, the situation of trade union officials and of employees is continuing to deteriorate under the influence of the heightened competition resulting from the globalization of trade. Dismissals of those who defend workers’ rights in enterprises are steadily increasing in Switzerland in the absence of any effective protection against the termination of their contract of employment. The USS gives further examples of unjustified dismissals of trade union officials and elected workers’ representatives, in addition to the 11 cases to which it referred in its initial complaint:
6. - Caran d’Ache SA, Geneva: dismissal of Mr. Rémi Cottenceau and Mr. Jean-Marc Hochuli (dismissal of two of the three members of the Administrative and Technical Supervisory Staff Committee of Caran d’Ache). Caran d’Ache SA is an enterprise employing around 280 people. The operational staff, who number around 100, have their own staff committee and are covered by a different collective labour agreement from that of the technical and administrative staff, who number around 180 persons. The Administrative and Technical Supervisory Staff Committee was re-elected on 11 December 2003, following a ballot requested by the staff and accepted by the management. The results of the ballot were acknowledged, among others, by the Director of Human Resources and the management representative on the electoral committee.
7. The staff committee has been active and met the management on several occasions in 2004 and 2005. In September 2005, the management dismissed four persons out of the 180 administrative and technical employees for economic reasons, including two of the three members of the staff committee, without referring to any fault on their part. The two dismissed members of the staff committee appealed to the labour court of the Canton of Geneva. During the conciliation hearing, Caran d’Ache SA agreed to pay Mr. Cottenceau the equivalent of six months’ wages in compensation, which is the maximum compensation that can be obtained through legal action alleging unjustified dismissal of a staff representative. Mr. Hochuli’s case is still pending with the labour court of the Canton of Geneva.
8. - Nove, Impression et Conseil SA, Nyon (Vaud): dismissal of Mr. Marc Boutin. In 2003, during the elections to the staff committee, Mr. Michel Python, the first employee to stand for election, was dismissed. A member of the staff, Mr. Marc Boutin, circulated a petition for signature against this dismissal. The trade union Comédia subsequently obtained compensation from the enterprise for Mr. Python. The elections were not held. At the beginning of the summer of 2003, Mr. Marc Boutin, who was approached for this purpose by the management, agreed to be appointed a member of the staff committee. He was also the representative (contact person) of the trade union Comédia in the enterprise.
9. A record of a trade union meeting, during which Mr. Boutin described the difficult situation experienced by the staff in the Nove enterprise, reached the management of the enterprise in the second half of April 2004. On 10 May 2004, during a meeting of the staff committee of the Nove enterprise, which Mr. Boutin could not attend as he was engaged in shift work, the director of the enterprise reported that significant harm had been caused to the enterprise by an employee (who could only be Mr. Boutin) through the union, in the form of negative and destructive rumours. On 25 March 2004, Mr. Boutin was dismissed; the reason given was the business downturn and the unfavourable economic situation. Nevertheless, Mr. Boutin was replaced and, at the time of his dismissal, the working day was extended by three hours a day owing to the considerable volume of work to be carried out. In a ruling dated 11 January 2005, the labour court of La Côte (Vaud) set aside Mr. Boutin’s case, giving the following two reasons: (i) it was not proven that he was the person who had strongly criticized the enterprise at a trade union meeting and that this was the reason for the dismissal; and (ii) he had been appointed to the staff committee of the enterprise, having been approached by the management for this purpose, but had not been formally elected by the staff, and did not therefore benefit from protection against unjustified dismissal. In his disgust at the ruling, Mr. Boutin refused to continue the legal action and to appeal to the cantonal court.
10. - Etablissement médicosocial (EMS), La Colline (Vaud): the dismissal of Mr. Damien Duplan, Mr. Merito Iglesias and Mr. Christophe Pariat (three staff representatives). A dispute arose in the enterprise between the management and the staff, who were supported by the trade union SSP, in 2005. The matter was referred to the Cantonal Conciliation Bureau, the state body responsible for the conciliation of collective labour disputes. The staff nominated three trade union members, all three of whom held positions of responsibility within the establishment, to represent them in negotiations with the management at the Cantonal Conciliation Bureau: Mr. Damien Duplan, Mr. Merito Iglesias and Mr. Christophe Pariat. Two days before the meeting at the Cantonal Conciliation Bureau, on 27 December 2005, the three representatives were dismissed by EMS La Colline. The Federal Councillor responsible for the Department of Health and Social Action delegated the chief of the public health service to undertake an arbitration. In this context, as a precondition for the arbitration, the staff obtained the reinstatement of its three representatives.
11. - Fondation de Nant (Vaud): dismissal of Mr. Antonio Herranz and of the president of the staff committee. On 25 September 2002, the appeal chamber of the court of the Canton of Vaud issued a ruling sentencing Mr. Herranz’s employer, the Fondation de Nant, to pay five months’ gross wages in compensation for unjustified dismissal. The cantonal tribunal found that “a broad range of evidence shows that the appellant’s membership of a trade union and the activities in defence of employees that he has undertaken during his employment have been of preponderant significance in the decision to dismiss him”. The complainant organization specifies that Mr. Herranz, a nurse, worked for the Fondation from 1 March 1987 to 31 December 2000 and that he was dismissed, among other reasons, for drafting with other staff members a petition to protest against the dismissal of an employee who had over 20 years of service. The court further notes that in 1999 the president of the staff committee had been dismissed by the enterprise and that the whole committee had resigned.
12. - Laiteries Réunies de Genève (Geneva): the dismissal of Mr. Olivier Schürch, president of the workers’ committee. Laiteries Réunies de Genève (LRG) is a consortium of eight food-processing companies, employing around 700 workers. In 2005, LRG adopted a hard-line position in negotiations for the renewal of the collective labour agreement, and then broke off negotiations, resulting in the absence of a collective agreement since 1 January 2006. In mid-February 2006, LRG dismissed Mr. Schürch, citing economic reasons. Mr. Schürch, who had been employed by the enterprise for 19 years, was accompanied that very day to his car, without even being allowed to collect his belongings and turn off his computer. A case for unjustified dismissal of a workers’ representative is currently before the labour court of the Canton of Geneva.
13. - Flasa SA, Filature de Laine Peignée d’Ajoie SA (Jura): dismissal of Mr. Francis Leprince. The USS refers once again to the first case cited in the complaint of 14 May 2003, in which legal proceedings were pending when the complaint was submitted. The procedure in the labour court led to a conciliation hearing on 21 October 2003, which failed. During the course of the legal proceedings, the worker noted that he was being boycotted by employers in the region, who refused to hire him while he maintained legal proceedings to claim his rights. In view of these refusals, Mr. Leprince, who is the family breadwinner, felt obliged to accept a transaction under which he was paid CHF16,000, or over four months’ wages. In an article in the publication Evénement syndical of 5 November 2003, the regional secretary of the Industrial, Construction and Service Trade Union (FTMH) noted that, in this enterprise, “of the six trade union representatives who worked at Flasa SA, there are now only two, as three of them have been dismissed for so-called economic reasons and a fourth left voluntarily indicating that he could no longer put up with the pressure exerted upon him”.
14. 1072. In view of the above, the USS requests the Committee on Freedom of Association to find that Switzerland is not in conformity with ILO standards, in particular Convention No. 98, which it has ratified, and Convention No. 135.
15. C. The Government’s replies
16. 1073. In its communication of 30 November 2004, the Government informs the Committee that various factors have had an influence on these cases (parliamentary debates; consultations at the administrative and ministerial levels; and information and possible consultation of the Federal Commission), thereby obliging it to request additional time to provide its observations.
17. 1074. In its communications of 8 March and 27 April 2005, the Government indicates that a draft additional report, in reply to the Committee’s recommendation, was submitted to the Federal Commission on 4 March 2005. The Commission discussed the draft text and decided to give the social partners further time for consultation and to adopt their positions, at the request of the complainant organization, with the support of the employer and government members. It was agreed that the social partners would provide their written observations and specific proposals to the Secretariat of State for the Economy (SECO) by the end of June. A meeting of the Commission was scheduled for 18 August 2005 to discuss the various approaches, and another was planned towards the end of September 2005 to endeavour to finalize the report. These factors obliged the Government to request further additional time to provide its observations, which it would do in the autumn of 2005.
18. 1075. In its communication of 25 August 2005, the Government provides information on the action taken to follow up the recommendations of the Committee on Freedom of Association and requests further time for the provision of its additional report. According to the Government, the consultations held at the end of June 2005 showed that the viewpoints of the social partners could not in principle be reconciled. While the employers confirmed their support for the text, the trade unions (USS and Travail.Suisse) supported the principle and purpose of the complaint and called for measures to be taken to provide effective protection against unjustified dismissal for anti-union reasons; expressed their opposition to certain passages of the draft report and called for substantial changes to it; and requested the establishment of a working group bringing together the social partners to discuss the measures to be taken.
19. 1076. The Federal Commission met once again on 18 August 2005 to discuss the various options. At that meeting, it discussed the possible alternatives for the continuation of its work. It had before it two options: option 1 – to hold a tripartite discussion with a view to examining the situation in law and practice relating to protection against unjustified dismissal for anti-union reasons; this would provide a basis for reflection by the participants in the tripartite discussion with a view to determining the options which might be envisaged for the continuation of its work; and option 2 – to amend the text of the draft report according to the positions taken by the social partners and to continue working for the submission of the report to the Federal Council and then the ILO.
20. 1077. The Federal Commission chose option 1, thereby complying with the interim conclusion of the Committee on Freedom of Association. The Federal Commission consequently decided that the Government’s draft report would be adopted later, based on the outcome of the tripartite discussion. The outcome of the Federal Commission’s discussions was immediately brought to the attention of the Swiss Government, which has noted the present information that is being provided to the Committee on Freedom of Association. Also as a consequence of the meeting of 18 August 2005, the State Secretariat for Economic Affairs (SECO) immediately invited the concerned members of the Federal Commission to designate representatives to participate in the tripartite discussion so that the work could begin as soon as possible, in accordance with the mandate given by the Commission.
21. 1078. In its communication of 13 December 2005, the Government indicates that the Federal Commission met once again on Monday, 28 November 2005. The discussion was held in a calm and open atmosphere, with a view to examining the situation in law and practice concerning protection against unjustified dismissal for anti-union reasons. During the discussion, the social partners reiterated their convictions: the employers did not want to see any change in law or practice, while the workers called for changes and put forward specific proposals, including a requirement to give prior notification to the competent authority (judge, conciliation bureau or labour office) of the employer’s intention to dismiss the trade union representative and/or the development of a solution based on the Gender Equality Act (LEg).
22. 1079. According to the Government, it was not possible at that stage to predict whether a solution agreeable to all parties would be found. Nevertheless, new avenues for reflection emerged which might allow, if such was the unanimous wish of the social partners, a continued exchange of ideas in the context of the tripartite discussion on possible measures to be taken in the event of unjustified dismissal for anti-union reasons. The social partners had until the end of December 2005 to state their views on whether to continue the exchange of ideas on the new avenues for reflection in the context of the tripartite discussion. The situation would be examined on the basis of the positions taken by the social partners at the beginning of 2006. In view of the above, the Government was not in a position to supply its observations in time for the meeting of the Committee on Freedom of Association in March 2006.
23. 1080. In its communication of 17 January 2006, the Government clarifies the nature of its previous observations, which it sees as a regular update on the process followed at the national level to keep the Committee on Freedom of Association informed of the action taken in accordance with the principle of direct democracy. The Government also recalls that the draft report discussed in March 2005 by the Tripartite Commission was suspended at the request of the complainant organization and that it had not subsequently been possible to reach a solution during the tripartite discussions.
24. 1081. In its communication of 27 January 2006, the Government assures the Committee that it is taking the necessary measures to produce the report as soon as possible, but that the decision-making process involves a series of formal procedures required by national law. A new version of the report could be finalized in March 2006. This text, accompanied by a draft government decision, then has to be submitted for consultation to the offices and services concerned in the federal administration for a period of seven weeks. Following this consultation process, a further consultation has to be held with the Federal Commission, although the date of its meeting has not yet been set in view of the circumstances. Only once the latter Commission has given its opinion can the matter be submitted for decision to the Swiss Federal Council, which would in turn decide, following a further consultation process involving the departments and general secretariats (ministries and ministerial cabinets), the duration of which is set at three weeks.
25. 1082. In its communication of 21 April 2006, the Government notes that the communication by the USS, dated 7 April 2006, contains a political assessment of the situation and that, at its own initiative, the USS has transmitted proposals for modifications of the law to the ILO. The Government also recalls that, in a communication of 27 January 2006, it had informed the Committee of the manner in which this matter was being handled at the national level, in support of its request for an extension of the period for the submission of the Government’s additional report. That communication specified that the Government was taking the necessary measures to draw up the additional report, as soon as possible, but that the decision-making process involved a series of formal procedures required by national law. These formal procedures had been described in detail, including the applicable time limits. As indicated, the draft additional report was finalized in March 2006, based on the situation described in the USS’s complaint of 14 May 2003 and on the interim recommendation of the Committee on Freedom of Association of 17 November 2004. This text, accompanied by a draft government decision, has [now] been submitted for consultation to the offices and services concerned of the federal administration until the end of April 2006. The Federal Commission would be consulted on the text on 16 May 2006. The decision of the Swiss Government is scheduled for 28 June 2006. It is no longer possible to modify the current procedure in relation to the Government’s political decision. Once it has taken its decision, the Government will provide the Committee with its additional report corresponding to the situation described above.
26. 1083. According to the Government, it has to be recognized that the developments in the situation make it practically impossible for the Government’s report to be finalized within a reasonable period of time. The examination of the USS’s additional allegations will require a considerable amount of time in view of the need to obtain the necessary information from the local judicial bodies, in particular. Furthermore, the other elements contained in the USS’s communication, namely the political assessment of the situation and the proposals for legislative amendments, will require in-depth examination. These consultations and the preparation of a separate government report covering the new developments will require many months of additional work. On this basis, the Government will provide the Committee with a separate report at the appropriate time. The Government adds that it will keep the Committee informed of developments, as it has always done since the beginning of the case.
27. 1084. In its communication of 19 June 2006, the Government states that the Swiss Government delegation has accepted the recommendation of the Committee [see 335th Report, para. 1356] and that it confirms both the substance and the form of its initial report and the statement made by its representative on 17 November 2004 at the 291st Session of the ILO Governing Body.
28. 1085. The USS informed the ILO of new developments concerning its complaint of May 2003. The ILO forwarded them to the federal administration offices on 12 April 2006, together with a list of ten new cases denounced by the USS. As the matter will never be dealt with if it is continually presented with new elements, the Government decided that its additional report of 19 June 2006 would refer to the situation described in the USS’s 2003 complaint and to the interim decision of the Committee, dated 17 November 2004, and that it would provide the Committee with a separate report on the new developments in due time. In this regard, the Government indicates in a communication of 5 October 2006 that a separate draft report of the Federal Council was prepared in reply to the additional allegations submitted on 7 April 2006 by the USS in respect of its complaint. This draft report was sent after consulting with the federal administration services. The tripartite Federal Commission on ILO affairs was subsequently consulted in writing on 28 August 2006 and given an allowance period of up until 12 September 2006 in order to formulate its positions. The Government specifies that certain members of the tripartite Federal Commission on ILO affairs, notably the workers, had however asked for a formal convening of the Commission to debate the draft report of the Federal Council. The Government responded favourably to this request, in the spirit of the 17 November 2004 interim conclusions of the Committee on Freedom of Association. The meeting of the tripartite Commission has been scheduled for November 2006. At this meeting, the matter will again be submitted for the decision of the Federal Council, so that it may then be transmitted to the Committee on Freedom of Association.
29. 1086. In communications of 8 March, 27 April, 25 August and 13 December 2005, 17 and 27 January 2006, the Government kept the Committee informed of developments with regard to the case at the national level, pending the preparation of the Federal Council’s draft additional report. In the view of the Swiss Government, the objective, in so doing, was to provide regular updates on the process under way at the national level and, if possible and necessary, to establish dialogue with the Committee. The tripartite discussion initiated following the interim recommendation of 17 November 2004 is a complex process, which forms part of the broader political context and is in full compliance with the principle of direct democracy, the founding principle of the Swiss constitutional and political system.
30. 1087. The Federal Commission (an extra-parliamentary advisory commission established in 2000 following the ratification of Convention No. 144 concerning tripartite consultation procedures and composed of representatives of the federal administration and the social partners) has been consulted.
31. 1088. A draft additional report by the Federal Council, in response to the recommendation of the Committee, was submitted to the Federal Commission on 4 March 2005, and then on 18 August 2005. The draft report covered in detail the issue of strengthening protection against unjustified dismissal for anti-union reasons, as discussed at the national level in relation to the accompanying measures to the Agreement on the free movement of persons concluded between Switzerland and the European Union. It described the action taken to follow up the various parliamentary interventions referred to in the Federal Council’s first report or introduced subsequently. A section was devoted to the reactions of the social partners and the Government following the decision of the Governing Body of 17 November 2004. The draft report then described the case law which has developed concerning the cases of dismissal referred to in the complaint. Information was supplied on pending cases. The draft report described the additional means available through Swiss direct democracy to address the USS’s principal claim. Finally, the draft report provided an assessment of the situation and reflected the conclusion of the Federal Council.
32. 1089. On 4 March 2005, the Federal Commission discussed the draft report and, at the request of the complainant organization, decided to grant further time to the social partners to determine their positions and for consultation on the Government’s draft report. The employer and government members of the Federal Commission supported the principle of this request for an extension. The time limit was set at the end of June 2005 and the social partners were requested to provide written comments on the draft report, with specific proposals, within that period. The viewpoints expressed by the social partners in the context of this consultation were, at first sight, irreconcilable. While the employers confirmed their support for the text of the Government draft, the trade unions (USS and Travail.Suisse) conveyed the following considerations:
33. – “support for the principle and purpose of the complaint, and a call for measures to be taken to provide effective protection against unjustified dismissal for anti-union reasons”;
34. – “opposition to certain passages of the draft report and request for substantial changes to be made to it”;
35. – “request for the establishment of a working group composed of the social partners to discuss the measures to be taken”.
36. 1090. The Federal Commission met once again, on 18 August 2005, to discuss the various options for dealing with the matter. On that occasion, the Federal Commission decided to hold a tripartite discussion to examine the situation in law and practice in relation to protection against unjustified dismissal for anti-union reasons. This examination was intended to serve as a basis for reflection by the participants in the tripartite discussion to determine the options that could be envisaged for the continuation of its work. The Federal Commission therefore decided that the observations of the Federal Council would be submitted later, based on the outcome of the tripartite discussion.
37. 1091. Taking into account the interim conclusion of the Committee, the tripartite discussion was held on Monday, 28 November 2005, with a view to examining the situation in law and practice relating to protection against unjustified dismissal for anti-union reasons. The discussion also covered possible measures to be envisaged with a view to strengthening protection against unjustified dismissal for anti-union reasons. The social partners confirmed their convictions: no change in law or practice for the employers, in contrast with the changes called for by the workers. Nevertheless, new avenues for reflection emerged which might have provided a basis, if such was the unanimous wish of the participants, for a continuation of the exchange of ideas in the context of the tripartite discussion.
38. 1092. The workers made an oral presentation of two ideas for legislative changes [prior notification to the competent authority (judge or conciliation bureau) of the employer’s intention to dismiss a trade union representative; adaptation of the solution envisaged in the LEg for matters relating to equality between men and women]. The employers were opposed to any proposed change in Swiss law and practice, and did not wish to enter into a discussion on the substance. As the proposals made by the workers were notified directly by the USS in writing to the Director-General of the ILO by a communication of 7 April 2006, and then brought to the attention of the Government by a communication of the ILO dated 12 April 2006, the Government will make its comments on this matter in the separate report referred to in paragraph 21.
39. 1093. The social partners were invited to give their views up to the end of December 2005 on the continuation of the tripartite discussion. In this context, the employers expressed opposition to any change in the legislation in force in relation to protection against unjustified dismissal for anti-union reasons. They considered that the law and its application in practice constitute effective protection against such unjustified dismissal, and that it would not be desirable to codify in the law procedures established by collective agreement, as that would signify the end of social partnership and the system of freely negotiated collective labour agreements, to which they are very attached. The employers therefore indicated that they did not see the point of continuing the exchange of views on the subject.
40. 1094. On the trade union side, the USS considered that the matter should be referred to the Federal Commission so that it could submit proposals to the Federal Council. Travail.Suisse wished to continue the exchange of views on new avenues in the context of the tripartite discussion.
41. 1095. Under the terms of reference of the Federal Commission, it does not have the competence to make legislative proposals to the Federal Council. Moreover, the continuation of an exchange of views is only justified if all the social partners concerned can participate in tripartite discussions.
42. 1096. It therefore has to be concluded that the tripartite discussion held through the good offices of the Government following the interim recommendation of the Committee has not, following an examination of the situation in law and practice, resulted in the proposal of new measures. In accordance with the Swiss constitutional and democratic system, it is for the authors of the complaint to refer the matter to Parliament, or to introduce a popular initiative.
43. 1097. As indicated in the Federal Council’s report of 31 March 2004, the political debate on strengthening protection against dismissal for anti-union reasons is not recent, and it will be continued despite the outcome of the above tripartite discussion. That report described the intense political debate in Parliament on the matter, and the action taken to follow up the various parliamentary initiatives. This political debate has since continued in two forms which offer important indications when assessing the present situation: the action taken to follow up the various parliamentary initiatives; and the debate on the accompanying measures relating to the extension of the free movement of persons and the outcome of the referendum of 25 September 2005.
44. 1098. On 22 September 2004, the National Council, in line with the long-standing policy of the Federal Council, decided not to give effect to and to set aside a parliamentary initiative relating to the strengthening of protection against unjustified dismissal for anti-union reasons: on 19 June 2003, National Councillor Pierre-Yves Maillard had introduced a parliamentary initiative (03.426) entitled “annulment of dismissal in cases of unjustified termination”. This initiative called for the introduction of the possibility of annulling dismissal in such cases through an amendment to section 336(a)(1) and (2) of the Code of Obligations (CO) and, alternatively, the award of compensation of six months’ wages if the employer can demonstrate that such annulment causes substantial harm or the worker opts not to continue the contract of employment. The arguments put forward by the author of the initiative are no different from those already used in the context of the other parliamentary interventions mentioned above.
45. 1099. A parliamentary initiative to facilitate the extension of collective agreements, minimum wages and for the annulment of unjustified dismissals of trade unionists was submitted on 17 December 2004 by National Councillor Pierre Vanek. At the time of drafting the present report, the initiative had not yet been examined by the plenary of the National Council. In the report of its meeting on 22 August 2005, the competent parliamentary commission proposed, by 15 votes to 9, not to pursue the parliamentary initiative.
46. 1100. On 6 October 2005, the National Council decided not to pursue a parliamentary initiative, submitted on 8 March 2004 by National Councillor Thanei (04.404: labour law, protection against dismissal), seeking greater flexibility in the payment of the compensation due in the event of unjustified dismissal.
47. 1101. Moreover, the Federal Council’s report of 31 March 2004 noted certain parliamentary interventions which were then being examined by the Swiss Parliament. Reference should be made to the situation in this regard:
48. – the Rennwald motion 97.3195: the motion was transformed into a “postulate” at the proposal of the Federal Council: the subject is considered to have been dealt with;
49. – the Rechsteiner Paul motion 02.3201: on 21 June 2002, the National Council decided to postpone discussion of the motion; the National Council rejected the motion on 10 March 2004;
50. – question by the Socialist group 03.3326: the discussion was postponed and, as the matter had remained pending for over two years, it has been shelved.
51. 1102. The issue of strengthening legal protection against unjustified dismissal for trade union reasons was discussed in the context of the accompanying measures to the free movement of persons: these measures were approved by popular vote, in accordance with the principle of direct democracy.
52. 1103. Following the decision of the European Community to accept ten new member countries as of 1 May 2004, negotiations commenced between Switzerland and the European Community concerning the extension of the Agreement on the free movement of persons concluded on 21 June 1999 between Switzerland and the then 15 Member States of the European Community, which entered into force on 1 June 2002. This Protocol to the Agreement was approved by Parliament in December 2004 and has been submitted to referendum. In this context, the trade union confederations (USS, Travail.Suisse) made their support to the extension of the agreement conditional upon the adoption of a series of measures to supplement the accompanying measures adopted by Parliament in October 1999.
53. 1104. The representatives of employers’ organizations and trade unions met with the Chief of the Federal Department of the Economy in October 2003. SECO was then given the mandate to establish a working group of the various representatives of the social partners with the task of examining the trade unions’ demands and providing a response on the issue of whether new accompanying measures were appropriate and, if so, the form that they might take.
54. 1105. On 14 June 2004, SECO issued the report on the work and conclusions of the tripartite working group. This report was approved by the organizations represented on the working group and reflects a compromise of principle between the social partners at the highest level. It examines all the trade union demands and the various issues discussed within the group. The working group proposed a certain number of measures, essentially intended to strengthen the system established in 1999. As the trade unions considered that protection against unjustified dismissal for anti-union reasons was not adequate, measures were proposed by the Government in the context of the tripartite discussions to render such protection more effective or to strengthen protection in law and practice. The employers did not comment on these measures. As each party kept to its position during the discussion of the report, it was decided not to make a proposal on this subject. Nevertheless, the decision taken at that level has not, particularly for the trade unions, ended the discussion on protection against unjustified dismissal for anti-union reasons in a broader political context at the national level.
55. 1106. Between 2 July and 17 September 2004, the report was submitted for consultation to the cantons, political parties and main economic organizations, as well as the social partners and other concerned parties. The draft document received the support of most of those consulted. The majority of political parties and confederations in particular welcomed the proposals. In contrast, the draft text was deemed disproportionate and inadequate, particularly by the Democratic Union of the Centre (UDC) and a number of occupational organizations, especially those active in the agricultural, market gardening and catering sectors. The Swiss Union of Arts and Crafts (USAM) expressed reservations. The trade unions supported the proposed measures, while regretting that several of their proposals had not been retained. From their point of view, the package constituted the strict minimum.
56. 1107. Based on the report of the working group and the outcome of the process of consultation of interested parties, the Federal Council took up the key points of the report and submitted to the Swiss Parliament all the measures proposed on which there had been tripartite consensus. The general part of the message describes the political context and presents the trade union’s demands, the report of the working group and the measures proposed for adoption by Parliament by means of the necessary legislative amendments; it also indicates that proposals have not been made on the specific issue of strengthening protection against dismissal.
57. 1108. During the debates in the parliamentary committees and the plenary of the two houses of Parliament, no proposal was made to strengthen protection against unjustified dismissal for anti-union reasons, in a spirit of compromise to ensure a balance between all the measures proposed. However, the parties of the left did not abandon the idea of strengthening protection against unjustified dismissal for anti-union reasons.
58. 1109. On 17 December 2004, Parliament adopted on final reading the whole text of the Federal Order approving and implementing the Protocol to extend the Agreement between the Swiss Confederation, on the one hand, and the European Community and its Member States, on the other, on the free movement of persons to the new Member States of the European Community and approving the amendment of the accompanying measures respecting the free movement of persons; in the National Council, by 142 votes for, 40 against and no abstentions; and in the Council of States, by 40 votes for (unanimity), 0 against and 2 abstentions.
59. 1110. Economic interest groups, the majority of the political parties and the social partners supported without reservation the extension of the agreement on the free movement of persons and the accompanying measures. The USS and the Unia trade union decided to support these two measures without reservation. In so doing, and in a spirit of compromise to ensure a balance between all the proposed measures, the trade unions as a whole gave up their demands to strengthen protection against unjustified dismissal for anti-union reasons. However, the decision adopted at this level does not bring to an end, particularly for the trade unions, the discussion on protection against unjustified dismissal for anti-union reasons in a broader political context at the national level. The extension of the agreement and the accompanying measures were opposed by the UDC and the extreme right, and by certain elements of the extreme left.
60. 1111. In accordance with the principles of direct democracy, a referendum was requested on this subject and the holding of the referendum was accepted on 29 March 2005, with the time limit set at 20 April 2005. A popular vote was sought by 92,901 citizens, with the minimum requirement being 50,000 persons. The subject was submitted to popular vote on 25 September 2005. The sovereign people approved it by 1,458,686 votes for and 1,147,140 votes against, which corresponds to an acceptance rate of 56 per cent. The popular vote of 25 September 2005 on the extension of free movement thus indicates a trend in support of the Federal Council’s position with regard to the extension and the accompanying measures, which do not contain specific measures to strengthen protection against unjustified dismissal for anti-union reasons. In this respect, it should be noted that, in various articles published following a press conference held by the USS at the end of November 2004, the trade unions specifically referred to the link between the complaint submitted to the Committee on Freedom of Association and the issue of the accompanying measures. The Swiss people, in its majority, approved the extension and accepted the accompanying measures as proposed, although the substantive debate on strengthening protection against unjustified dismissal for anti-union reasons could be pursued, particularly for the trade unions, in a broader political context at the national level.
61. 1112. The Government recalls that the principle of direct democracy is founded in the Swiss constitutional and legal system. As indicated by the elements referred to above, the people is or may be called upon to decide on an issue through a democratic vote. The exercise of popular rights is regulated by federal legislation, which enumerates the means available for their implementation at the federal level. In the present case, the principle of Swiss direct democracy is pertinent in two respects:
62. (a) In the first place, the possibility is open to the USS to pursue the debate, through its representatives, at the parliamentary level through the submission of interventions in appropriate forms, as indicated in the Federal Council’s reports and those of the Committee on Freedom of Association (such as a motion or a parliamentary initiative). In the event that a parliamentary motion calling for a strengthening of the legislation affording protection against unjustified dismissal for anti-union reasons were successful, the Federal Council would have to give effect to it by submitting draft legislative measures to Parliament. If a parliamentary initiative calling for a strengthening of the legislation affording protection against unjustified dismissal for anti-union reasons were successful, Parliament would address the subject directly (see paragraph 47). In view of the recent negative responses of the Federal Council and Parliament, there is little chance of the latter changing its position in the near future on the issue of making provision in the CO for the possibility of the reinstatement of trade unionists who are victims of unjustified dismissal. A popular initiative could however offer an additional means of action.
63. (b) The whole range of democratic means offered by the Swiss legislation in force have not been exhausted with regard to a possible strengthening of the legislation respecting protection against unjustified dismissal for anti-union reasons: the Swiss system of direct democracy offers means to address the principal demand set out in the USS’s complaint in a democratic manner. The USS can introduce a popular initiative in the form that it considers appropriate, which might include the following:
64. – a popular initiative (a popular initiative on a federal issue; a federal popular initiative): this consists of a written application through which 100,000 citizens with the right to vote may request the Federal Assembly to undertake the overall revision of the Constitution or to adopt, repeal or amend constitutional or legislative provisions;
65. – or a general popular initiative: this consists of a popular initiative through which 100,000 citizens with the right to vote may, in the form of a proposal formulated in general terms, call for the adoption, amendment or repeal of constitutional or legislative provisions. A general popular initiative is an innovation accepted by the referendum of 9 February 2003. The authors of a popular initiative would be free to refer to the principles of freedom of association.
66. 1113. However, the recommendations adopted by the Committee on Freedom of Association are addressed exclusively and explicitly to the governments of the States against which complaints are made and not, in principle, to national legislators or the judicial authorities. The Committee’s interlocutors when formulating its conclusions and recommendations are governments. Admittedly, in so far as certain of the Committee’s recommendations advocate a revision of the legislation or the adaptation of the case law of judicial authorities or national administrative authorities, they may be considered to have an influence on these authorities. It nevertheless has to be recognized that, even in such cases, it is still for the Government to decide, in accordance with its own internal rules, whether or not it can intervene with these authorities.
67. 1114. In Switzerland, and in the present case, with regard to the independent judicial authorities established in accordance with the principle of the separation of powers, the only possibility open to the Federal Council in principle is information through an exchange of views. In the event of a recommendation by the Committee on Freedom of Association proposing a legislative amendment within the remit of the ordinary legislator, the Federal Council would only in practice have a “right of initiative”, which would amount to proposing the issue to Parliament, taking into account the text of the Committee’s recommendation. Accordingly, whatever means is adopted (government draft, or a parliamentary motion or initiative), Parliament would examine the issue in complete independence, taking into account its assessment of any recommendation made by the Committee on Freedom of Association. Following the outcome of the parliamentary process, the issue could still be addressed by a referendum.
68. 1115. Finally, with regard to the people, in accordance with the principle of direct democracy which is in force in Switzerland, any recommendation by the Committee on Freedom of Association advocating a revision of the legislation would not have democratic legitimacy, particularly as Convention No. 98 is not directly applicable in the Swiss constitutional and legal system. Indeed, the establishment of the Committee on Freedom of Association and the related complaint procedure is the result of a policy decision made by the Governing Body of the ILO in 1951. This decision emanates from a management body of the ILO, but not its deliberative body, the International Labour Conference. When the Conference adopts new instruments or amendments to the ILO Constitution, these are submitted to the Swiss Parliament for information or for adoption and ratification, as the case may be. Although based on the principles of the ILO Constitution, the Committee on Freedom of Association is not explicitly part of the constitutional system for the supervision of standards governed by the provisions of the ILO Constitution of 1919, and the role and competence of the Committee on Freedom of Association are not governed by the statutes of the ILO. Nor does the supervision carried out by the Committee follow from the ratification of ILO Convention No. 98. In view of the above, and given that there has been no amendment to the ILO Constitution, the establishment of the Committee on Freedom of Association and the related complaint procedure have never been noted or formally adopted by the Swiss Parliament.
69. 1116. The Government emphasizes that the case law of Swiss courts in relation to protection against unjustified dismissal is more flexible and more favourable to the interests of dismissed workers than is claimed by the complainant organization or the Committee on Freedom of Association. In its interim report, the latter confines itself to noting, with reference solely to the USS’s allegations, but without verifying whether they are well founded or consistent, that the practice of Swiss courts in recent years has been to award a maximum of only three months’ wages. Furthermore, the Committee on Freedom of Association refers to the 11 cases cited by the USS in support of its complaint, whereas the USS’s claims are not in fact borne out in the majority of cases. Indeed, a recent positive trend has been observed in the case law of cantonal and federal courts, and this might judiciously be taken into account.
70. 1117. The Federal Council requests the Committee on Freedom of Association to give due considered to this information, particularly taking into account the specific national features described in the Federal Council’s first report, and not only in the light of the Committee’s own practice in the non-authentic interpretation of the text of Convention No. 98. In this respect, the Federal Council refers in particular to the comments made by the Committee on Freedom of Association to the effect that as long as “protection against anti-union discrimination is in fact ensured, methods adopted to safeguard workers against such practices may vary from one State to another” [see Digest, 1985, para. 571].
71. 1118. In Switzerland, disputes relating to cases of unjustified dismissal may be handled by different courts, depending on the value of the claim. In the first instance, they are examined by labour courts, the rulings of which are not necessarily published, but in which the deliberations are public, thereby allowing broad information. They may also be examined by cantonal high courts and, on appeal, by the Federal Court. Reference is made below principally to the rulings of the highest cantonal courts and the Federal Court.
72. 1119. In the case of the Federal Court, the compensation granted by the judge has a dual function, as it is both punitive and compensatory, and is not dependent on the existence of damages (ATF 123 III 391; ruling 4c.239/2000 of 19 January 2001). It is determined on the basis of the circumstances in each case. In recent years, the Federal Court has developed its case law and now admits criteria for the establishment of the amount of compensation which were not previously taken into account, including the duration of the employment relationship and the economic effects of dismissal.
73. 1120. The Federal Court has also recalled that constantly leaning towards the maximum penalty is contrary to the law; as the maximum is set at six months, the judge retains full discretion (ATF 119 II 161). Nor should compensation systematically be set at the minimum level. In this ruling, the Federal Court upholds a compensation award of four months’ wages, despite the existence of a fault by the worker.
74. 1121. In its ruling of 28 March 2002 (application for review, 4c.86/2001), the Federal Court recalls the amounts of compensation that it has granted: five months in July 1997, three months in August 1997, six months in January 1999, five months in July 2000 and, in this ruling, five months [see Droit du travail, Revue du droit du travail et d’assurance-chômage (DTA), 2002, pp. 146-147].
75. 1122. In a particularly serious case of unjustified dismissal aggravated by sexual harassment (ruling of 8 January 1999, published in Semaine judiciaire, 1999, pages 277-282), the Federal Court granted compensation of six months’ wages (CHF19,200), as well as compensation for moral damages under section 49 of the CO amounting to CHF5,000. In a ruling of 7 September 2004, in a case of dismissal relating to the protection of the personality of the worker (section 328, CO), the Federal Court recognized the injury caused to the personality of the worker and awarded damages with interest under section 49 of the CO. In a ruling of 13 October 2004, in addition to compensation of six months’ wages for unjustified dismissal, the Federal Court awarded CHF25,000 in compensation for moral damages (4c.343/2004). The Federal Court has stated the following principles: compensation of six months’ wages in principle covers material damages and compensation for moral damages resulting from unjustified dismissal; only in exceptionally serious cases can additional compensation be granted; with the exception of such cases, compensation can only be granted if it is justified by reasons other than unjustified dismissal.
76. 1123. In ruling 130 III 699, the Federal Court dealt with the application of section 336(1)(b) of the CO (first exception), under which dismissal by reason of the exercise of a constitutional right by the other party to the contract is not unjustified where the exercise of the right violates of an obligation resulting from the contract of employment. Legal commentary admits that this justifying ground may, inter alia, be invoked by certain specific types of enterprises (“entreprises à tendance” – enterprises engaged in political, religious, trade union, scientific, artistic activities, etc.), in the case of certain employees who have a greater duty of faithfulness. In the case in point, dismissal occurred by reason of the exercise of constitutional rights by the worker (freedom of conscience and belief, freedom of opinion). The Federal Court, upholding the opinion of the cantonal court, found that dismissal was not therefore unjustified. The reference by the Committee on Freedom of Association to the voidability of dismissal in cases of violation of constitutional principles, in paragraph 1354 of its report, has accordingly to be viewed in perspective.
77. 1124. Finally, confirming that the compensation awarded is not merely nominal, the Federal Court recently issued a ruling (ATF 132 III 115) allowing the award of a maximum amount of compensation to an employee who disputed the measures taken by the employer. The abrupt manner in which the employer acted, and the age and long service of the employee were also taken into account.
78. 1125. At the cantonal level, there are differences between the 26 Swiss cantons in relation to unjustified termination of the employment contract for anti-union reasons. The compensation varies according to the situation, but is not systematically set at three months’ wages; it may be lower or higher, according to the circumstances. In certain cases, compensation of up to six months’ wages has been awarded (see, for example, the case law in this respect of the Canton of Neuchâtel between 1989 and 2003) [Jean-Philippe Dunand, “La jurisprudence de la Cour de cassation civile neuchâteloise en matière de licenciement abusif”, in Recueil de jurisprudence neuchâteloise, 2003, pp. 51-90]. It should be recalled that the cantonal rulings examined were handed down by the appeal bodies of civil courts and do not therefore reflect the case law of first-level courts (labour courts), which is not systematically published in view of the fact that the parties often reach an amicable agreement. It should however be noted that the debates in labour courts are generally held in public and that everyone has access to them.
79. 1126. In conclusion on this point, and in view of the fact that federal case law has a positive influence on cantonal courts, it may be noted that the case law of the Federal Court is increasingly taking into account all the circumstances of the dismissal. It attaches particular attention to protection of the personality of the worker, as it is possible to obtain compensation for moral damages (section 49 of the CO) over and above other compensation where it appears that the maximum compensation of six months’ wages is not adequate to take into account the moral damages. In a recent publication (ARV/DTA 2/2005), Mr. Jean-Philippe Dunand, doctor of law, lawyer and professor at the University of Neuchâtel, has acknowledged, with reference to specific cases of unjustified dismissal, that the amounts of the compensation awarded by the courts in the country in respect of employment relations for moral damages have tended in overall terms to increase in recent years. He adds that this development is illustrative of the greater attention paid to the protection of the worker’s personality and can only be welcomed. In the Swiss legal and economic context, and in comparison with the award of other forms of compensation by judges, whether for moral or other damages, the total compensation for unjustified termination of employment is not therefore merely nominal.
80. 1127. With regard to cases that are still pending, on which the Committee on Freedom of Association requested to be kept informed, the Government indicates that, with reference to the enterprise Flasa SA, according to the information that has come to its knowledge, the compensation claimed by the complainant is contested by the defendant. With a view to bringing an end to the civil case, the parties decided to agree upon the payment by the defendant of compensation as a full and final settlement, without acknowledging any obligation or liability. The complainant has accordingly withdrawn the action taken against Flasa SA and the agreement concluded by the parties has been approved by the judicial authorities. No ruling was handed down by roll court and, as noted by the judge, the case has been settled and struck from the court roll.
81. 1128. With regard to the Usines Métallurgiques de Vallorbe SA, according to the information available to the Government, conciliation was attempted, but failed. The complainant therefore requested an expert opinion concerning equality of treatment and remuneration between her position as operator and that of the adjuster who took over 20 per cent of her activities. The expert analysis has been carried out and the report by Professor Flückiger of the University of Geneva has been prepared. The report finds that there is a discriminatory wage policy, but it is contested by the employer, as the overall findings appear to be flawed by several major errors (failure to take into account the reduced working hours of the complainant, for example). The enterprise’s comments were submitted to the president of the civil court of La Broye and North Vaud on 10 March 2006 and the parties are awaiting the president’s findings. The dispute concerns unjustified dismissal and the existence of wage discrimination against the complainant. The complainant’s submission to the court, dated 9 December 2002, does not indicate that the dismissal is contested on the basis of the violation of trade union rights. Her arguments are however based on her intense trade union activities in the enterprise. She contends that the enterprise dismissed her as a hidden reprisal under the pretext of termination for economic reasons. In the view of the Government, in this case, although the legal action involves an allegation of unjustified dismissal, it is not clear from the complainant’s pleadings to the court that the dismissal is contested explicitly on the basis of violation of trade union rights, even though her arguments are based on her trade union activities. Moreover, there is currently no ruling establishing unjustified dismissal by reason of trade union activity.
82. 1129. In brief, the Government states that:
83. – the tripartite consultation called for by the Committee on Freedom of Association in its recommendation of 17 November 2004 has taken place in two forms: firstly, in the Federal Commission at the various meetings cited in the report; and, secondly, through a tripartite discussion held on 28 November 2005, which did not consider it necessary for additional measures to be taken.
84. – the political context has developed at two levels, which offer indications of significant trends:
85. - the action taken to follow up the various parliamentary interventions has confirmed the policy of the Government and the parliamentary majority not to amend the legislation respecting protection against unjustified dismissal for anti-union reasons;
86. - parliamentary and public debates on the accompanying measures to the extension of the free movement of persons and the outcome of the popular vote on 25 September 2005 expressed support for the position of the Federal Council on the issue of the extension and accompanying measures, which do not include specific measures to strengthen protection against unjustified dismissal for anti-union reasons. Nevertheless, the fundamental debate on strengthening protection against unjustified dismissal for anti-union reasons is not closed, and could continue, particularly among trade unions, in a broader political context at the national level.
87. – This fundamental debate is taking place in the context of Swiss democratic principles, and particularly that of direct democracy, which forms the basis of the Swiss constitutional and political system. These principles:
88. - offer additional means of action, at the parliamentary and democratic levels, to achieve the central objective of the USS’s claim, namely what it considers to be effective protection in practice against unjustified dismissal for anti-union reasons;
89. - afford no democratic legitimacy to the procedure before the Committee on Freedom of Association, or to any recommendation by the Committee to the Government advocating a revision of the legislation, particularly since Convention No. 98 is not directly applicable in the Swiss constitutional and legal system.
90. – The case law of Swiss courts in relation to protection against unjustified dismissal is more flexible and favourable to the interests of dismissed workers than is claimed by the complainant organization, and it has recently undergone positive developments. Federal case law has a positive influence on that of cantonal courts, and is increasingly taking into account all the circumstances of the dismissal. This case law attaches particular importance to the protection of the personality of the worker, as it is possible to obtain compensation for moral damages (section 49 of the CO) in addition to the normal compensation, where it appears that the maximum amount of compensation of six months’ wages is not adequate in regard to the moral damages suffered. In the Swiss legal and economic context, and in comparison with the award of other forms of compensation by courts, for both moral damages and on other grounds, the total amount of compensation for unjustified termination of employment is not therefore merely nominal. The Swiss system has thus achieved a sound balance between punishment and the need for labour market flexibility.
91. 1130. The Government concludes that:
92. – the submission of a complaint to the Committee on Freedom of Association and the Committee’s procedure have no direct relevance in a parliamentary and democratic process relating to a legislative amendment and governed by the principle of direct democracy, given that the above procedure does not enjoy the necessary democratic legitimacy and that Convention No. 98 is not directly applicable in Switzerland;
93. – the assertions, arguments and reasons given by the complainant and the interim comments of the Committee on Freedom of Association, to the effect that the penalty established by Swiss law is not sufficiently dissuasive to provide truly effective protection in practice, are not well founded and are to be rejected, given that recent case law has evolved and that the Committee has not verified either the validity or the consistency of the practice of Swiss courts of awarding a maximum of only three months’ wages in recent years;
94. – the Committee on Freedom of Association is therefore requested to set aside definitively and take no further action on the complaint registered under No. 2265 alleging violation of trade union rights.
95. 1131. The Government adds that this draft report was submitted for discussion to the Federal Commission on 16 May 2006. This extra-parliamentary advisory commission consists of representatives of the federal administration and the social partners. The employers supported the Federal Council’s draft additional report. The workers distanced themselves from it, which is understandable given the fact that they are the authors of the complaint that is before the Committee on Freedom of Association. The workers nevertheless noted that cases of unjustified dismissal for anti-union reasons were rare in Switzerland, as the great majority of employers do not take such measures. A number of drafting changes were made to the report following the discussion.

D. The Committee’s conclusions

1. 1132. The Committee recalls that the complaint raises the issue of whether national law and practice guarantee trade union officials and representatives within enterprises adequate protection against anti-union dismissal, in keeping with Article 1 of Convention No. 98, which has been ratified by Switzerland.
2. 1133. At its last examination of the case, the Committee had noted that the complainant organization alleged that national legislation 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 for anti-union reasons; that the compensation provided for in such cases, which cannot exceed six months’ salary, is nominal and fails to act as a deterrent; 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)); and that the 11 examples presented show the extent of anti-union practices at the national level [see 335th Report, paras. 1336 and 1337]. The Committee further noted that the Government considered that national legislation provides adequate protection to trade union officials and representatives against acts of anti-union discrimination, in keeping with Article 1 of Convention No. 98; that the drafting of the relevant sections of the Code of Obligations (CO) demonstrates that the legislature had the specific intention of increasing the protection of workers against unfair dismissal; that the compensation provided for by the CO, of up 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 30,000 Swiss francs; that the protection of workers’ representatives against unfair dismissal, provided for in the CO, is greater than that provided in other cases of unfair dismissal since, 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 [see 335th Report, para. 1338]. In its recommendations, the Committee invited 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, if the tripartite discussion considers it necessary, measures are taken so that such protection is truly effective in practice. The Committee also requested the Government to provide it with information on the evolution of the situation dealt with in the case [see 335th Report, para. 1356].
3. 1134. Firstly, in regard to the procedural arguments put forward by the Government, the Committee notes that the latter states that Convention No. 98 is not directly applicable in the Swiss constitutional and legal system. In this respect, the Committee recalls that the obligation on all Members of the ILO under article 19, paragraph 5(d), of the Constitution of the ILO provides that States will take such action as may be necessary to make effective the provisions of ratified Conventions. The Committee has already had occasion to recall this obligation to respect fully the commitments undertaken by ratification of ILO Conventions [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 11]. While the manner in which the application of a ratified Convention is ensured in law and in practice varies from one State to another depending on the national constitutional and legal system, the basis for this obligation cannot be challenged.
4. 1135. Concerning the Government’s statement to the effect that Swiss democratic principles afford no democratic legitimacy to the procedure before the Committee, the Committee recalls that when a State decides to become a Member of the Organization, it accepts the fundamental principles embodied in the Constitution and the Declaration of Philadelphia, including the principles of freedom of association [see Digest, op. cit., para. 10]. The Committee’s existence derives from this fundamental constitutional obligation and the desire of the ILO’s constituents to contribute to the effective implementation of the principles of freedom of association [see Digest, op. cit., paras. 1, 2 and 3]. Moreover, the Committee recalls that the whole object of the special procedure on freedom of association is not to blame or punish anyone, but rather to engage into a constructive tripartite dialogue to promote respect for trade union rights in law and in fact [see 323rd Report, Case No. 1888, para. 199].
5. 1136. Concerning the Government’s statement to the effect that Swiss democratic principles afford no democratic legitimacy to any recommendation by the Committee to the Government advocating a revision of the legislation, the Committee recalls that its mandate consists in determining whether any legislation or practice complies with the principles of freedom of association laid down in the relevant Conventions [see Digest, op. cit., para. 6]. Following its examination of a complaint, the Committee has thus on a number of occasions requested the amendment of a country’s legislation. The specific measures taken to give effect to these recommendations and the applicable internal procedure are clearly left to the discretion of the Government concerned.
6. 1137. Concerning the allegations of the USS, the Committee notes that the latter confirms that discussions were held in the Tripartite Federal Commission for ILO Affairs between representatives of the Government, employers, the USS and Travail.Suisse. According to the USS, discussions are blocked, as the employer’s representatives are opposed to any improvement in the protection of trade union officials and elected workers’ representatives, despite the compromise proposals made by the USS. In view of this opposition, the USS believes that the Swiss Government appears to consider that it is not in a position to take action.
7. 1138. The Committee notes that, according to the complainant, anti-union dismissals are steadily increasing in Switzerland. The Committee notes the new examples given by the USS in addition to the 11 cases mentioned in its initial complaint.
8. 1139. The Committee takes note of the very detailed reply from the Government. It refers to the situation described in the complaint presented by the USS in 2003, as well as the Committee’s interim report of 17 November 2004. The Committee notes that the Government will reply separately to the new allegations presented by the USS. The Committee expects that this will be done as soon as possible.
9. 1140. The Committee notes that, according to the Government, the tripartite consultation requested by the Committee in its previous recommendation has taken place: firstly, in the Tripartite Federal Commission for ILO Affairs at several meetings referred to in detail by the Government; and secondly, in a tripartite discussion held through the good offices of the Government on 28 November 2005. That discussion has not, following an examination of the situation in law and in practice, resulted in the proposal of new measures concerning protection against unjustified dismissal for anti-union reasons.
10. 1141. In general, 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, op. cit., para. 697]. More particularly, in the case of trade union officials 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].
11. 1142. The Committee recalls its conclusions during its previous examination of the case, when it noted that in many respects national legislation and practices are in keeping with the abovementioned principles, and that indeed national legislation provides protection against acts of anti-union discrimination, the issue having been 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 noted that the Data Protection Act (LPD) provides workers with specific protection against acts of anti-union discrimination when they are appointed. The Committee also noted that there is also specific protection against anti-union dismissal and for elected workers’ representatives. The Committee 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 noted 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 claim to be the victims of anti-union dismissal but are not elected workers’ representatives.
12. 1143. As regards the penalty as such, the Committee recalled 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 326th Report, Case No. 2116, para. 592; 332nd Report, Case No. 2262, para. 394; 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 recalled 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 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]. In this regard, the Committee has in many cases requested governments to ensure that the workers concerned are reinstated without loss of pay. It has also, in cases where such reinstatement is not possible due to specific workplace circumstances, recommended that the government ensure that the workers concerned are paid appropriate compensation sufficient to constitute a deterrent against anti-union dismissals.
13. 1144. The Committee notes that the workers, at the meeting on 28 November 2005, put forward ideas for amending legislation including the solution provided for in the Gender Equality Act (LEg). In this regard, the Committee noted in its previous examination of the case that Swiss legislation provided better protection for workers who have been victims of dismissal that violates the principle of equality than for workers dismissed for anti-union reasons. According to the complainant organization, only unfair dismissal that comes under the terms of the Gender Equality Act can give rise to reinstatement within an enterprise, while the Government emphasized the different purposes of the LEg and the CO: the purpose of the LEg is to promote in practice the constitutional principle of equality between women and men by prohibiting any form of discrimination based on gender in employment, while the CO governs the rights and obligations of the parties to a contract of employment. The Government had specified that the solution adopted by the legislature for promoting the constitutional principle of equal treatment for women and men was based on the notion of the voidability of a dismissal, rather than on the principle of reinstatement. The Government emphasized that, with the Swiss Parliament, it had wished to establish special protection with regard to equal treatment for men and women.
14. 1145. The Committee notes the Government’s statements to the effect that the Federal Council and the majority of Members of Parliament have not been favourable to changes in legislation concerning protection against unfair dismissals for anti-union reasons. It notes also that parliamentary and public debates on accompanying measures to allow greater freedom of movement for individuals, and the referendum of 25 September 2005, endorsed the position of the Federal Council with regard to those measures, which do not include any specific measures to improve protection against anti-union dismissals.
15. 1146. The Committee nevertheless notes the Government’s statement to the effect that the substantive debate on improving protection against unfair dismissal for anti-union reasons is not over and that it might be continued, especially among the unions, in a broader political context at the national level. In this regard, the Committee requests the Government to take measures to provide the same protection for trade union representatives dismissed for anti-union reasons as is given to victims of dismissal that violates the principle of equal treatment for men and women, including the possibility of reinstatement, with due regard to the principles referred to above and Conventions Nos. 87 and 98, ratified by Switzerland.
16. 1147. The Committee also notes that, according to the Government, there have recently been some positive changes in the jurisprudence of Swiss courts with regard to protection from unfair dismissal, one feature of this being the possibility of obtaining damages over and above the standard compensation if the maximum compensation of six months’ wages appears not to reflect the harm suffered by the victim. The Committee notes, however, that as regards unfair termination of an employment contract for anti-union reasons, there are differences between the cantons and the compensation varies according to the specific circumstances, ranging from less than three months’ wages to more than that sum. Since the compensation for anti-union dismissal in some cantons is unlikely to have a deterrent effect, the Committee invites the Government to continue tripartite dialogue on this specific issue as well as in respect of the whole matter. The Committee recalls that the technical assistance of the Office is available to the Government.

The Committee's recommendations

1. 1148. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to take measures to provide the same protection to trade union representatives who suffer anti-union discrimination as for victims of dismissals that violate the principle of equal treatment for men and women, including the possibility of reinstatement, with due regard to the fundamental principles referred to above and Conventions Nos. 87 and 98, ratified by Switzerland.
   • (b) The Committee encourages the continuation of tripartite discussions on the whole matter, including a review of the situation in certain cantons with regard to compensation for anti-union dismissal.
   • (c) The Committee requests the Government to provide its observations as soon as possible on the most recent allegations by the complainant organization contained in its communication of 7 April 2006.
   • (d) The Committee recalls that the technical assistance of the Office is available to the Government.

Z. Annex

• Proposed legislative amendments presented by the USS at the Tripartite Commission of Experts on 28 November 2005
  1. 1 The members of a workers’ representation body and trade union officials shall be protected during the course of their mandate and the year following the end of that mandate. They may not be dismissed by reason of the exercise of their activity as workers’ representatives.
  2. 2 If an employer plans to dismiss a member of a workers’ representation body or a trade union official – for a reason other than a valid ground justifying immediate dismissal within the meaning of section 337 of the Code of Obligations (CO), this intention shall be notified in advance and by registered letter to the worker concerned and to the Cantonal Conciliation Bureau (alternative: to the Cantonal Labour Office). If the worker concerned is a trade union official, the employer shall also notify the intention in the same manner to the trade union concerned.
  3. 3 The Cantonal Conciliation Bureau shall convene the parties within a short period. If the worker is a member of a trade union, the union shall be entitled to participate as a party to the procedure. The Bureau shall hear the parties, receive and examine the written submissions and may hear third parties.
  4. 4 The Bureau shall notify the parties of its decision to authorize or refuse authorization of the dismissal within 30 days following receipt of the notification of the employers’ intention to proceed to dismissal.
  5. 5 If the employer does not comply with the procedure of notification of the intention of dismissal to the Cantonal Conciliation Bureau or ignores the refusal to authorize such dismissal, the dismissal may be annulled. The worker concerned, if she or he intends to contest the termination of the contract of employment and apply for the annulment of the termination, shall take action in the courts, at the latest up to the end of the period of notice.
  6. 6 The judge may order the reinstatement of the worker and the continuation of the employment relationship for the duration of the legal procedure, where it appears that the conditions for an annulment of the dismissal are likely to be met.
  7. 7 The worker may, during the proceedings, decide not to continue the employment relationship and seek compensation within the meaning of section 336(a) of the CO instead of the annulment of the dismissal.
  8. 8 For the purposes of the above provisions, a representation body means any structure (for example, works committee, enterprise committee, committee of managerial staff, etc.) or any delegation of workers in a structure of the enterprise (for example, representing the workers on the Executive Board) or in a joint structure (for example, representing the workers on the constituent board of an insurance institution) empowered to defend the interests of the persons whom they represent in relation to the employer.
• All the members of the workers’ representation body shall benefit from protection, irrespective of whether they have been formally elected or appointed, provided that such appointment was made in a written communication between the representation body and the employer or is common knowledge within the enterprise.
  9. 9 For the purposes of the above provisions, a trade union official is the person designated by a trade union to represent it in the enterprise in which she or he works, vis-à-vis the workers and the management, and whose name and capacity as a trade union official have been notified to the employer by registered letter.