Direct Request (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee notes the information in the Government’s report, in particular the information relating to Articles 4, 8 and 10 of the Convention. It wishes to draw the Government’s attention to the following points.

Article 6(b). The Committee recalls its previous comment in which it had asked the Government to take the necessary measures in order to extend the period of protection for workers’ claims concerning holiday pay to the year in which the insolvency or the termination of employment occurred, as well as to the preceding year, in accordance with the provisions of this Article of the Convention. The Committee notes the Government’s statement to the effect that no such measure is envisaged in the field of bankruptcy law. It therefore requests the Government once again to take all necessary measures to bring its legislation into conformity with the provisions of the Convention.

Article 6(d). The Committee notes that, according to the Government’s indications, the worker’s claim for severance pay is protected in case the termination of employment occurs in the six months prior to the bankruptcy, and that no additional measure is foreseen in the field of bankruptcy law. The Committee recalls that the Convention requires the protection of claims for severance pay due upon termination of employment, even if the termination occurred before the bankruptcy or for other reasons than bankruptcy. Therefore, the Committee again asks the Government to take all appropriate measures to guarantee the protection of severance pay, in case that the employment contract is terminated prior to bankruptcy or for other reasons than bankruptcy, in accordance with the provisions of the Convention in this regard.

Article 12(b), (c), and (d). The Committee notes that, in accordance with the terms of section 3(1) of the federal law on compulsory unemployment insurance and compensation in case of insolvency (LACI), the legal notion for "wage" in the federal law on the old-age and survivor insurance (LAVS) is applicable in the field of compensation in case of insolvency. The Government indicates that the term "wage claims" refers to the determining wage as defined in section 5(2) LAVS. The Committee notes that, according to the text of this provision, the term "wage" covers the claims for holiday pay (Article 12(b)) and for amounts due in respect of other types of paid absence (Article 12(c)), but does not seem to include the claims for severance pay (Article 12(d)). The Committee accordingly requests the Government to indicate the measures taken or envisaged, in order to ensure that severance pay, due to workers upon termination of their employment, is declared an integral part of the "wage claims" under section 52 LACI.

Finally the Committee would be grateful to the Government for supplying information, in conformity with Part IV of the report form, on the manner in which the Convention is applied in practice.