Observation (CEACR) - adopted 1993, published 80th ILC session (1993)

Part VI of the Convention (Employment injury benefit)

1. Article 38 (in conjunction with Article 69(f)). In its previous comments, the Committee raised the question of the compatibility with the Convention of section 37(2) and section 38(2) of the Federal Accident Insurance Act (LAA of 20 March 1981) which provide for the reduction of the cash benefits due to employment injury victims or their survivors (in the case of the latter, such benefits may even be refused) where the contingency has been caused by gross negligence on the part of the person concerned. Indeed, as the Committee has already emphasized, the suspension of benefits is only authorized under the terms of Article 69(f) of the Convention where the contingency has been caused by the wilful misconduct of the person concerned.

In its reply, the Government states that in the draft Federal Act on the general part of Swiss social insurance law, which was prepared by the Commission of the Council of the States on the basis of a draft elaborated by the Swiss Insurance Law Society and which is currently under examination, it is envisaged that the reduction of benefits in the event of gross negligence on the part of the person concerned will be eliminated. It adds, however, that the Federal Council has before it a number of priorities, including the tenth revision of the Old-Age and Survivors' Insurance Act, the revision of the Sickness Insurance Act and the Occupational Pensions Act, and the examination of the relationship between the compulsory basic pension scheme and the compulsory occupational pension scheme. In these circumstances, the Federal Council, although it generally approves the draft legislation proposed by the Commission of the Council of the States, wishes the work of revising the above Acts be completed before Parliament debates the new draft legislation. The Committee notes this information. In this context, the Committee also notes the comments made by the Swiss Federation of Trade Unions (USS) transmitted by the Government on 12 February 1993. According to the USS, the Federal Council issued an opinion with reservations concerning the above draft legislation and invited the Parliament to suspend its work. Although aware of the priorities facing the Government, the Committee once again hopes that the draft Federal Act on the general part of Swiss social insurance law will be adopted in the near future and that it will take fully into account the above provisions of the Convention, which have been the subject of the Committee's comments for many years. It would be grateful if the Government would supply information in its next report on any development in this respect.

2. Article 34, paragraphs 1 and 2. In reply to the Committee's previous comments concerning section 10(3) of the above-mentioned Federal Accident Insurance Act (which provides that the Federal Council may establish the conditions under which the insured person is entitled to care at home, and the extent to which such care is covered by the insurance), and to section 18 of the Ordinance of 20 December 1982 (which provides that the insurance covers only a part of the expenses resulting from care at home prescribed by a medical practitioner and provided by an authorized person), the Government states that this care consists in practice of nursing care and that in practice insurers cover the whole expense of such care. It adds that the fee agreement with the providers of such care, which was to establish the contribution payable by insured persons to the cost of care provided at home, has still not been concluded, mainly due to the absence of a central association representing nursing personnel, which makes it uncertain that section 70(1) of the above Ordinance is applied. According to the Government, the situation which prevails in practice in Switzerland is therefore in accordance with Article 34 of the Convention. The Committee notes this information. It therefore hopes that the Government will have no difficulty in setting out this practice in legislation by providing explicitly that there shall be no contribution by the victims of employment injuries to the cost of nursing care at home, in accordance with the Convention.

[The Government is asked to report in detail for the period ending 30 June 1993.]