Rapport définitif - Rapport No. 380, Octobre 2016

Cas no 3109 (Suisse) - Date de la plainte: 11-OCT. -14 - Clos

Allegations: The complainant alleges that it has been prevented from participating in the negotiations on a collective agreement with the enterprise, Swiss Post. It further alleges acts of discrimination and intimidation directed against its President and its members

1. 936. The Autonomous Union of Postal Workers (SAP) presented its complaint in communications dated 11 October 2014, 18 February and 30 March 2015, and 2 February 2016.
2. 937. The Government submitted its observations in communications dated 9 March and 30 November 2015, and 6 May 2016.
3. 938. Switzerland has ratified the Freedom of Association and Protection of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Labour Relations (Public Service) Convention, 1978 (No. 151), and the Collective Bargaining Convention, 1981 (No. 154).

A. The complainant’s allegations

1. 939. In a communication dated 14 October 2015, SAP states that it is a trade union and was established within Swiss Post in 2005. In pursuit of its goal of improving its members’ working conditions, its statutes empower it to negotiate and conclude collective labour agreements. However, it indicates that, since its establishment, it has been demanding that Swiss Post allow it to participate in negotiations with a view to concluding the enterprise’s collective labour agreement (CCT) or to engage in negotiations with a view to concluding a convention on behalf of its members. The SAP maintains that the enterprise has refused to allow it to exercise this right to bargain collectively on the basis of criteria for representation which, despite the trade union’s repeated requests between 2005 and 2010, the enterprise refused to specify. In November 2010, after a complaint had been lodged with the Federal Administrative Court (FAC), the enterprise agreed to recognize the SAP as a trade union representing its employees and to provide it with some facilities but continued to refuse to bargain collectively with it.
2. 940. Following a change in the status of the Post, which became a public limited company in 2012, and of its staff, which are now governed by the Code of Obligations, the SAP again requested to participate in negotiations on the new CCT, which was under preparation. When the enterprise again refused, including in a communication dated 3 April 2012, stating that the number of SAP members (500) was far from sufficient for it to be considered representative, the trade union lodged a complaint with the Federal Postal Services Commission (Post-Com), which rejected it. The SAP then lodged a complaint with the FAC, which, in a decision issued on 13 December 2013, concluded that Post-Com was not empowered to compel Swiss Post to accept or reject the SAP as a social partner and therefore set aside its decision. On 23 December 2013, after its appeal to the highest Swiss administrative court had failed, the SAP requested the Federal Conciliation Office to intervene. The conciliation meeting was held nine months later on 8 September 2014. The SAP reports that during the meeting, its rival trade unions (Syndicom and Transfair) attended and participated in the proceedings and, by expressing their opposition to the SAP, were one reason that conciliation was not achieved. The SAP expresses surprise that the established collective dispute resolution system allows rival trade unions to object to its recognition by the employer. The trade union also challenges the number of members claimed by Syndicom and Transfair 15,000 and 6,000, respectively and requests that a notarial certificate attesting to the exact number of employee members be drawn up.
3. 941. The SAP maintains that the enterprise has continued to refuse to specify the criteria for representation that it used and explains that, regardless of the number of the trade union’s members, the enterprise was unwilling to recognize it as a social partner and would not do so unless compelled by a court judgment. Such a statement demonstrates the climate of mistrust in which the SAP must operate; its representatives are demonized to the staff by the enterprise’s management. In support of its allegations, the SAP provides copies of internal communications between 2005 and 2009, informing management staff that the SAP was not an official partner of the enterprise. It also reports that its President, Mr Olivier Cottagnoud, and Vice-President, Mr Lionel Laurent, were subjected to intimidation and subtle retaliation, including disciplinary measures, simply for carrying out their trade union responsibilities.
4. 942. The SAP considers that the Swiss authorities, through the Post-Com and the FAC, have denied it the right to participate in negotiations on collective agreements although the criteria for representation are neither known nor established. The enterprise in question has even refused to specify the criteria that it used in refusing to allow the SAP to exercise this right before the federal Conciliation Committee. Thus, the SAP is being accused of not being representative without knowing the criteria for representation. The trade union also notes that the many delays in opening discussions with it, the fact that its right to bargain collectively has been denied since 2005 and the refusal to state the criteria for representation are clear proof of the enterprise’s lack of good faith, which, in the trade union’s view, is nevertheless essential to social welfare.
5. 943. The SAP also notes that although the authorities refer to the FAC’s case law on the matter, the Court has not set clear criteria, including an established quantitative minimum. The trade union recalls the ILO monitoring bodies’ principle that representative character should be based on objective and pre-established criteria. Therefore, this situation, in which the Government has not established a system whereby the criteria for representation are previously established in a transparent manner, is contrary to the commitments that Switzerland made in ratifying the relevant ILO Conventions on freedom of association and collective bargaining and to the principles recalled by the monitoring bodies, particularly the Committee on Freedom of Association (CFA) and the Committee of Experts on the Application of Conventions and Recommendations.
6. 944. The SAP requests the Government to take steps to put an end to these violations and to require Swiss Post to finally agree to negotiate the collective labour agreement under preparation or to conclude a collective agreement with the trade union on behalf of its members. It also requests the Government to put an end to the discrimination against and pressure on its leaders and representatives in the enterprise.
7. 945. In its communication of 30 March 2015, the SAP objects to the time limit that the Government has set for its response to the complaint early 2016 and recalls that the Government has been aware of the situation since December 2013, when the appeal was brought before the federal Conciliation Committee. It maintains that setting this time limit is an effort to exclude it from the ongoing collective bargaining with the enterprise, and thus to undermine it by leading its members to resign out of anger at its failure to sign the CCT, and that many of its members have resigned.

B. The Government’s reply

1. 946. In a communication dated 6 May 2016, the Government provided background on the handling of the complaint and made observations on the complainant’s allegations.
2. 947. As an introduction, it recalls that Swiss Post employs approximately 55,000 people and is one of Switzerland’s largest employers. With a policy mandate set by its largest shareholder, the Confederation, the enterprise has offices throughout the country. In June 2013, it became a public limited company known as Swiss Post Ltd. Its primary markets are exploited by the group’s core companies, Post CH Ltd, PostFinance Ltd and PostBus Ltd. Since 26 June 2013, its staff employment relations have been governed by the private labour law contract regime, the Code of Obligations. Under Chapter 1, article 1, of the Swiss Post Organization Act (LOP) of 17 December 2010 (Act No. 783), the modalities for and date of the transfer of Swiss Post employees’ employment relations to the private law regime are established in an agreement between the social partners, signed on 25 June 2012. The Act of 17 December 2010, also requires the enterprise to negotiate a CCT with the staff associations (local trade unions). Lastly, the Government recalls that the enterprise employs 55,000 people and that the two trade unions that are parties to its CCT which entered into force on 1 January 2016, represent almost 40 per cent of its staff (of which 15,000 are members of Syndicom and 6,000 of Transfair).
3. 948. The Government states that, according to a notarial certificate issued in July 2014, the SAP reported 600 active members, including retirees and supporters who are not employed by the enterprise. According to the local office, the trade union has failed to expand significantly since its establishment in 2005.
4. 949. With regard to background on the handling of the case, the Government states that on 17 October 2014, the ILO informed the State Secretariat for Economic Affairs (SECO) that the SAP had presented to the CFA complaint against the Government, alleging failure to respect the principles of freedom of association and collective bargaining. The complaint focuses on the refusal of Swiss Post Ltd (hereinafter “the enterprise”) to include the SAP as a partner in negotiations on the new CCT following the change in the establishment’s status. The Government notes that the SAP presented its complaint to the Committee after bringing several judicial proceedings before the national courts for the same purpose. The primary reason for the enterprise’s refusal to include the SAP as a partner in the negotiations on the new CCT is the fact that, in its view, the trade union is not sufficiently representative of the staff, either numerically (600 members out of a total of 55,000 employees) or geographically. As a subsidiary argument, the enterprise alleges unfair conduct by the SAP.
5. 950. The ILO’s announcement was discussed informally in Geneva on 17 October 2014 at a meeting of the Tripartite Federal Commission on ILO Affairs. On that occasion, the representatives of national trade unions on the Commission (the Swiss Federation of Trade Unions (USS), Unia and Travail.Suisse) emphasized that the SAP did not meet the criteria for representation in the context of collective bargaining within the enterprise. With regard to the current procedure for presenting the complaint to the CFA, the ILO Director-General might appoint a representative of the Organization whose mandate would be to carry out preliminary contacts with the complainant and the competent authorities of the country in question in order to gather full information on the issues raised in the complaint, ascertain the facts and seek possible solutions on the spot (paragraph 67 of the special procedures for the examination in the International Labour Organization of complaints alleging violations of freedom of association). To that end, SECO requested the ILO to conduct a preliminary contacts visit in order to gather information from the parties, including the social partners in the hope that an amicable arrangement could be reached. The CFA agreed to that request and a team from the Office visited Lausanne, Vétroz and Bern on 11 and 12 December 2014. The visit team met with representatives of SECO, the Federal Office of Justice and the various social partners concerned (the SAP, the Swiss Employers’ Association, Swiss Post, Syndicom, USS, Unia, Travail.Suisse and Transfair).
6. 951. In its report, the visit team states that collective bargaining in Switzerland is conducted in the absence of pre-established quantitative criteria for trade union representation. It notes, however, that case law, including that of the Federal Court, has developed criteria for recognition of a trade union as a social partner with a view to participating in collective bargaining and concluding or signing a CCT. These criteria are related to the representation and fairness of the trade union, to be assessed by the Court on a case-by-case basis, the goal being to promote effective collective bargaining. The visit team notes that with the exception of the SAP, this pragmatic approach was recognized and welcomed by all of the people with whom it met.
7. 952. The visit team also notes that the enterprise has almost 55,000 employees and that the two trade unions involved with a view to concluding CCTs with management represented, at the time, almost 40 per cent of the staff (Syndicom with 15,000 members and Transfair with 6,000), whereas the SAP, with 600 active members, represented 1 per cent of the staff. The visit team further notes that the SAP’s principal request is to be able to participate immediately in the negotiations with management on the CCT. In its conclusions, the visit team stated that there was genuine disagreement as to whether the SAP should be represented during the negotiations on the Swiss Post CCT and that, in light of current practice in Switzerland, this disagreement could be addressed by the competent bodies. Therefore, as the issue had not been settled by amicable arrangement, the Office referred the case to the CFA and in March 2015, it informed SECO that the SAP’s complaint had been registered.
8. 953. With regard to the various appeals lodged by the SAP, the Government recalls that as soon as the change in the enterprise’s status was announced, the trade union requested to be included in the negotiations with a view to conclusion of a new CCT. Swiss Post refused this request on the grounds that the SAP was not sufficiently representative (1 per cent of the staff) and had acted unfairly (communication dated 3 April 2012). On 29 April 2013, the SAP lodged a complaint with the Federal Postal Services Commission (Post-Com), requesting an official ruling regarding the enterprise’s obligation to include it in collective bargaining. On 4 July 2013, Post-Com decided “not to order Swiss Post to conduct negotiations with the SAP”. On 22 July 2013, the trade union appealed this decision before the FAC. In a judgment dated 13 December 2013, the FAC held that Post-Com did not have the subject matter competence to order the enterprise to include a trade union in collective bargaining and should have dismissed the SAP’s complaint. Consequently, it set aside the Post-Com decision of 4 July 2013 and, in addition, rejected the SAP’s appeal. Subsequently, in another attempt to be included as a partner in the negotiations on the enterprise’s CCT, the SAP lodged an appeal with the Federal Conciliation Office. On 9 September 2014, the conciliation proceedings proved unsuccessful. The SAP then appealed the decision of the FAC before the Federal Court, which, in a judgment dated 22 March 2015, confirmed the FAC decision and rejected the SAP’s appeal. On 26 June 2015, the SAP brought proceedings for failure to recognize its legal personality before the Bern-Mitteland civil court. The conciliation hearing, which took place in October 2015, proved unsuccessful, after which the SAP declined to bring proceedings within the relevant legal time period.
9. 954. The Government explains that the dialogue between the enterprise and the SAP continued during the aforementioned time period. In fact, the enterprise provided the SAP with some facilities with a view to its expansion (2010: information meetings between the representatives of the two parties every three months, permission to make use of the internal bulletin boards and the provision of new employees’ addresses to the SAP; and 2013: permission to meet with new apprentices).
10. 955. With regard to the assessment of representative character under the Swiss system, the Government states at the outset that freedom of association is enshrined in article 28 of the Federal Constitution (Act. No. 101). This provision of the Constitution establishes that employees, employers and their organizations have the right to join together in order to protect their interests, to form associations and to join or not to join such associations. Case law and doctrine make a distinction between individual and collective freedom of association. Individual freedom of association entitles individuals to help to form a trade union, join an existing one or participate in its activities, as well as not to join or to resign from a trade union. Collective freedom of association entitles trade unions to exist and to act accordingly, in other words, to defend the interests of their members. This implies, among other things, the right to participate in collective bargaining and to conclude collective agreements.
11. 956. The Government explains that a trade union is established as an association within the meaning of articles 60 et seq. of the Swiss Civil Code (Act No. 210). However, Switzerland has no procedure for registering or recognizing trade unions in order to determine their representative character, which is assessed on a case-by-case basis under the conditions prescribed in the case law of the Federal Court. In that regard, the case law on representation has been established and confirmed in several of the Court’s judgments. The Government refers, in particular, to Federal Court judgment 2C 701/2013 of 26 July 2014 (Federal Institute of Technology (EPF) Staff Union v. Council of Federal Institutes of Technology (EPF Council). This judgment addressed the question of whether an EPF trade union must be recognized as a social partner. Among its criteria for representation, the EPF Council had established requirements for the staff union’s members and had concluded that the trade union could not be recognized as a reliable social partner. In its judgment, the Federal Court applied Swiss constitutional law. In this case, the trade union won its appeal in so far as the Federal Court recognized that it met enough of the criteria for representation to participate in collective bargaining within the EPF.
12. 957. In its judgment, the Federal Court recalled several principles: (i) at the outset, the right to exercise collective freedom of association by participating in collective bargaining and concluding or signing collective agreements, is not open to all trade unions without restrictions. Such a situation might result in an excessive number of social partners, which in turn might undermine the quality and effectiveness of social dialogue and the conclusion of collective agreements, which, like the independence of the social partners, is considered a key element of collective labour law in Switzerland. For this reason, only trade unions that are recognized as social partners are entitled to participate in social dialogue under article 28 of the Constitution; (ii) the requirements for recognition of a trade union have been established in the case law of the civil courts: a union must be recognized as a social partner in order to participate in collective bargaining and conclude or sign a collective agreement, even without the consent of the employer or the other social partners, if it is sufficiently representative and acts fairly; to do otherwise would violate its right to legal personality. In particular, a minority trade union may not be excluded if it is sufficiently representative; (iii) doctrine has organized this case law by establishing that a trade union must meet four requirements for recognition as a social partner: (1) be empowered to conclude collective agreements (Tarifahigkeit); (2) have geographical and subject matter competence; (3) be sufficiently representative (representative character requirement); and (4) demonstrate that it has acted fairly (fairness requirement); (iv) on the issue of freedom of association, the case law of the Federal Court also establishes that representative character and fair conduct are requirements that a trade union must meet in order to be recognized as a social partner; (v) limiting the status of social partner to trade unions that meet the representative character and fair conduct requirements does not constitute a violation of freedom of association, which entails the obligation to comply with article 36 of the Constitution (restrictions on fundamental rights). On the contrary, these requirements must be understood as inherent in the notion of “social partner” and must be met by trade unions in order to claim that status; (vi) the representative character and fair conduct requirements are legally undefined notions that must be interpreted through assessment on a case-by-case basis; (vii) with regard to the representative character requirement, such character may be properly assessed if appropriate and reasonable criteria are used. These criteria must be sufficiently broad to include minority trade unions in social dialogue in order to encourage a degree of pluralism in the expression of trade unions’ views without granting every minority trade union social partner status; to do otherwise might undermine the effectiveness of social dialogue. Thus, trade unions must speak on behalf of a minority group rather than comprising isolated members. In that respect, the Federal Court did not set a universal minimum number of members to be used in assessing whether a minority trade union is representative. It did, however, establish in one case that a trade union of which 7 per cent of the enterprise’s employees were members was sufficiently representative and that, despite attempts to exclude it, it must be recognized owing to its obvious influence at the national level. Furthermore, a trade union need not represent a large minority in order to have representative character; moreover, a union that lacks such character in the enterprise in question but is sufficiently representative at the cantonal or federal level must also be recognized as a social partner. A trade union’s representative character must also be considered in light of the particular structure of the enterprise or public institution through which it is requesting to be recognized as a social partner; (viii) employers may establish criteria for representative character in a document of general scope; where the employer is a public authority or a public sector body, these criteria may but need not be established legally, procedurally or substantively; (ix) the fair conduct requirement means that the trade union in question must undertake to meet all obligations arising from the collective labour agreement and, generally speaking, must be a trustworthy social partner. It must demonstrate that it is reliable and acts in good faith. In particular, this is not the case if it unduly obstructs collective bargaining or makes false accusations against the other social partners; (x) the fair conduct requirement concerns the trade union’s dealings with the other social partners; in particular, it may not be called unfair simply for being involved in a dispute with some of its current or former members since such disputes are unrelated to its conduct as a social partner; and (xi) the fairness requirement, which is one aspect of good faith, must be deemed to be presumed. Therefore, if a trade union that is requesting recognition as a social partner undertakes to meet the obligations arising from the collective labour agreement or, more broadly, the obligation to act as a trustworthy social partner, and if it also meets the other requirements for recognition, the employer may not, in principle, refuse to recognize the trade union unless it can demonstrate, based on previous actions that raise serious concerns as to whether it would conduct itself fairly in social dialogue, that the fairness requirement has not been met.
13. 958. The Government states that the SAP is a local minority trade union that represents about 1 per cent of the enterprise’s employees whereas the other trade unions (Syndicom and Transfair) represent about 28 and 11 per cent of the staff, respectively. Clearly, the enterprise is unwilling to include the SAP in the negotiations on the CCT because it is neither numerically nor geographically representative and because it is deemed to have acted unfairly. The enterprise has, however, held intensive consultations with the SAP in order to provide it with some facilities with a view to its expansion (meetings with representatives of management every three months, permission to use the internal bulletin boards, provision of new employees’ addresses to the SAP; and permission to meet with new apprentices). Lastly, the Government recalls that the SAP has had access to all legal safeguards and legal and administrative remedies in order to assert its rights, even before the highest state legal body, the Federal Court.
14. 959. While the criteria for representation in Switzerland are established through the case law of the Federal Court rather than by law, the Government considers that there are objective criteria for eliminating any risk of bias or abuse. It is neither desirable nor advisable to establish criteria for representation in domestic law. In that regard, the Government recalls that the Federal Court itself has stated that while a legal, procedural or substantive basis may, of course, be envisaged, it is not absolutely essential even where the employer is a public authority or a public sector body.
15. 960. In conclusion, the Government considers that domestic law and practice for assessing the criteria for a trade union’s representation are fully consistent with the requirements arising from ILO Conventions on the right to bargain collectively and, in particular, from Conventions Nos 98 and 154, which Switzerland has ratified.

The Committee’s conclusions

1. 961. The Committee notes that in this case, the complainant, SAP alleges that since its establishment in 2005, it has been prevented from participating in the collective bargaining process on the grounds that it is not sufficiently representative but that it has not been informed of the criteria for such an assessment. The SAP also alleges acts of discrimination and intimidation directed against its President and its members.
2. 962. The Committee notes that the case concerns Swiss Post Ltd. (hereinafter “the enterprise”), which, according to the Government, employs approximately 55,000 people and is one of Switzerland’s largest employers. With a policy mandate set by its largest shareholder, the Confederation, the enterprise has offices throughout the country. In June 2013, it became a public limited company. The Committee also notes that under Chapter 1, article 1, of 17 December 2010 (Act No. 783), the modalities for and date of the transfer of Swiss Post employees’ employment relations to the private law regime were established in an initial collective agreement signed on 25 June 2012. The Act also requires the enterprise to negotiate a CCT with the staff associations. Lastly, the Committee notes that, pursuant to the Act, the enterprise has begun collective bargaining with two trade unions that represent about 40 per cent of the staff (Syndicom and Transfair with 15,000 and 6,000 members, respectively) and that these negotiations culminated in the signing by the social partners of a CCT that entered into force on 1 January 2016.
3. 963. The Committee notes that the Tripartite Federal Commission on ILO Affairs has discussed the SAP’s complaint to the ILO, which was presented in October 2014. According to the Government, on that occasion, the representatives of the national trade unions on the Commission (USS, Unia and Travail.Suisse) emphasized that the SAP did not meet the criteria for representation in the context of collective bargaining within the enterprise in question. Within the framework of the procedures established for that purpose (paragraph. 67 of the special procedures for the examination in the International Labour Organization of complaints alleging violations of freedom of association), SECO requested the ILO to conduct a preliminary contacts visit in order to gather information from the parties, including the social partners in the hope that an amicable arrangement could be reached. The Committee agreed to that request and a team from the Office visited Lausanne, Vétroz and Bern on 11 and 12 December 2014. The Committee welcomes the efforts and initiatives taken by the Government and by the Tripartite Federal Commission on ILO in this regard.
4. 964. The visit team met with representatives of SECO, the Federal Office of Justice and the various social partners concerned (the SAP, the Swiss Employers’ Association, Swiss Post, Syndicom, USS, Unia, Travail.Suisse and Transfair). The Committee observes that the visit team states in its report that there is genuine disagreement as to whether the SAP should be represented during the negotiations on the enterprise’s CCT. As the issue had not been settled by amicable arrangement, the complaint was registered and referred to the Committee.
5. 965. The Committee notes that, according to the complainant, the enterprise has been refusing to allow the SAP to exercise its right to bargain collectively since the trade union’s establishment in 2005. The change in the status of the enterprise and the requirements introduced with the Act of 2010 still did not allow it to participate in collective bargaining on behalf of all the employees or of its own members, as it is demanding to do. The SAP maintains that, despite its repeated requests between 2005 and 2010, the enterprise has refused to allow it to exercise this right to bargain collectively on the basis of criteria for representation that the enterprise nevertheless refuses to explain. According to the trade union, the enterprise has even refused to inform the Federal Conciliation Committee of its criteria for representation. Thus, the SAP regrets that it is being accused of not being representative without knowing the criteria for representation.
6. 966. The Committee notes that the Government, for its part, maintains that the SAP is a minority trade union that represents about 1 per cent of the enterprise employees whereas the other trade unions (Syndicom and Transfair) represent about 28 and 11 per cent of the staff, respectively. Thus, the enterprise is clearly unwilling to include the SAP in the negotiations on the CCT because it is neither numerically nor geographically representative and because it is deemed to have acted unfairly. The Committee also notes the statement that the enterprise has conducted intensive consultations with the SAP in order to provide it progressively with a number of facilities with a view to its expansion (meetings with representatives of management every three months, permission to use the internal bulletin boards, provision of new employees’ addresses to the SAP; and permission to meet with new apprentices).
7. 967. The Committee notes that, with regard to trade union representation, Swiss law does not set a minimum threshold for representative character and that, in principle, disputes between the parties during collective bargaining are settled by joint committees and, as a last resort, by the courts. According to the Government, this system is based on the goal of effective, responsible social dialogue. To that end, and in the absence of any official standards for recognition of a trade union, the nature of a trade union organization is assessed for the purpose of participating in collective bargaining with an employer using criteria established in the case law of the Federal Court; according to the Government, this avoids any risk of bias or abuse.
8. 968. The Committee notes that according to this case law, as recalled in Federal Court judgment 2C 701/2013 of 26 July 2014 (Federal Institute of Technology (EPF) Staff Union v. Council of Federal Institutes of Technology (EPF Council)), recognition of a social partner is based on four primary criteria; a trade union that wishes to be included in negotiations on a CCT must: (1) be empowered to conclude collective agreements; (2) have geographical and subject matter competence; (3) be sufficiently representative without, a priori, meeting a minimum quantitative criterion; and (4) have acted fairly in the past; it undertakes to meet the obligations arising from the CCT, to be a reliable partner and to act in good faith.
9. 969. According to the Government, this legal structure provides objective assessment criteria and, above all, takes a pragmatic approach. It is welcomed by all the social partners and allows for a case-by-case assessment that takes the specific characteristics of enterprises and the structure of the economic sectors in question into account. The judge assesses the situation using clear and pre-established criteria. The Government emphasizes that the value of this approach may be seen from its results; it is welcomed by the trade unions and employers’ organizations.
10. 970. The Committee would like to recall that, generally speaking, the right to bargain freely with employers with respect to conditions of work constitutes an essential element in freedom of association; and trade unions should have the right, through collective bargaining or other lawful means, to seek to improve the living and working conditions of those whom the trade unions represent; and that the public authorities should refrain from any intervention which might restrict this right or impede the lawful exercise thereof. Recognizing the possibility of trade union pluralism does not preclude granting certain rights and advantages to the most representative organizations. However, the determination of the most representative organization must be based on objective, pre-established and precise criteria so as to avoid any possibility of bias or abuse, and the distinction should generally be limited to the recognition of certain preferential rights, for example for such purposes as collective bargaining, consultation by the authorities or the designation of delegates to international organizations. The Committee has also recalled on several occasions that Conventions Nos 87 and 98 are compatible with systems which envisage union representation for the exercise of trade union rights based on the degree of actual union membership, as well as those envisaging union representation on the basis of general ballots of workers or officials, or a combination of both systems [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, paras 354 and 349].
11. 971. The Committee observes that while the system under consideration sets no legally established minimum number for representation, it gives joint and judicial appeal mechanisms considerable latitude in resolving disputes concerning collective bargaining or recognition of a trade union as a social partner. The Committee would like to emphasize that the principle that objective, precise and pre-established criteria must be set in order to avoid any risk of bias or abuse in a context in which the most representative trade unions are given certain rights and advantages does not necessarily require establishing a minimum number of members. The Committee notes that under the Swiss system, a judge makes the final assessment based on clear criteria for representation and fairness that have been previously established by the country’s highest court and are evaluated by the court on a case-by-case basis. According to the report of the ILO visit team, this approach has been welcomed by all of the country’s most representative trade unions and employers’ organizations and, in the Committee’s opinion, is not contrary to the aforementioned principles.
12. 972. The Committee observes that the ILO visit team stated in its conclusions that, in light of current practice in Switzerland, the issue of SAP representation in negotiations on the CCT could be addressed by the competent bodies. It notes from the background on the appeals lodged by the SAP with a view to participation in collective bargaining that the trade union has had access to all legal safeguards and legal and administrative remedies in order to assert its rights, even before the highest State legal body, the Federal Court. Moreover, it is the Committee’s understanding that after the SAP had brought proceedings for failure to recognize its legal personality before the Bern-Mitteland civil court in June 2015 and the October 2015 conciliation hearing had proved unsuccessful, the trade union declined to bring proceedings within the legal time period.
13. 973. In conclusion, the Committee considers that the negotiations with a view to the conclusion of CCTs between the enterprise and the two trade unions that represent about 40 per cent of its staff (Syndicom and Transfair) and the refusal to allow the SAP (which reports that its membership accounts for 1 per cent of the staff) to participate as a minority trade union raise no issues with regard to the principles of freedom of association and collective bargaining.
14. 974. Lastly, the Committee takes note of the complainant’s allegations of acts of discrimination (refusal to grant the same arrangements with regard to trade union leave as are granted to the other trade unions), intimidation and retaliation directed against SAP leaders and representatives and, in particular, disciplinary measures imposed on its President, Mr Olivier Cottagnoud, and Vice-President, Mr Lionel Laurent, for having carried out their trade union responsibilities.
15. 975. With regard to the granting of arrangements, the Committee notes the statement that, since 2010, the SAP has been granted facilities within the enterprise with a view to its expansion (meetings with representatives of management every three month; permission to use the internal bulletin boards; provision of new employees’ addresses to the SAP; and permission to meet with new apprentices) and encourages continued dialogue and consultation between the enterprise and the SAP in order to agree on the granting of any additional facilities required by the trade union’s representatives, including free time to carry out union activities subject to the effective functioning of the administration or service concerned, as well as access.

The Committee’s recommendation

1. 976. In the light of its foregoing conclusions, the Committee invites the Governing Body to consider that this case does not call for further examination.