Individual Case (CAS) - Discussion: 2006, Publication: 95th ILC session (2006)

A Government representative noted that the comments of the Committee of Experts did not seem to take into account the fact that the Union of Swiss Employers, as opposed to the Swiss Federation of Trade Unions (USS/SBG), considered that Convention No. 98 was fully applied in Switzerland. He hoped that the Conference Committee could reach appropriately balanced conclusions in this regard. Regarding protection for anti-union dismissals, the Committee of Experts mentioned the complaint brought by the Swiss Federation of Trade Unions on 14 May 2003 before the Committee on Freedom of Association, the Government report of 31 March 2004, and the interim Committee report of 17 September 2004. In its reply, the Government had shown that there was not a majority of cases that supported the complaint by the Swiss Federation of Trade Unions. After the discussions of 17 November 2004, the Committee on Freedom of Association took no decision on substance, even though it considered that the sanctions applied by Swiss law were not sufficiently dissuasive to ensure efficient protection in practice against unfair dismissal for anti-union reasons. The Committee therefore proposed that the Governing Body adopt interim conclusions that invited the Swiss Government to produce a report presenting additional information on the development of the situation, since the complaint had been brought and on measures taken after discussion with the social partners to ensure proper protection against unfair dismissal for anti-union reasons. The Swiss delegation to the Governing Body had accepted the interim conclusions of 17 November 2004.

The Government representative stated that his delegation took note of the fact that the Committee of Experts concurred with the recommendations of the Committee on Freedom of Association, even though the examination of the case had not been fully completed. The Government would shortly adopt its supplementary report on the interim conclusions of 17 November 2004. This report referred to the situation described in the complaint by the Swiss Federation of Trade Unions of 14 May 2003. It was therefore clear that the speaker could not now provide information that appeared in a report that had not been adopted by his Government. Accordingly, the Conference Committee should abstain from prejudging a possible recommendation of the Committee on Freedom of Association expected in November 2006. As regarded protection against acts of interference, the Swiss Federation of Trade Unions expressed its concern by citing enterprises expressly, which did not seem to correspond to ILO practice. The Conference Committee evaluated the extent to which the Convention was given effect by national legislation. In principle, it did not go into detail on denunciations relating to specific enterprises. In addition, the Government was not in a position to obtain all the necessary facts to be able to respond to the Committee of Experts' comments. Regarding promotion of collective bargaining, Article 4 provided that appropriate measures should be taken to encourage and promote collective bargaining between employers and workers' organizations. This Article featured two essential and complementary provisions, first, action by the authorities to promote bargaining between social partners, and, second, the voluntary nature of bargaining, which implied independence of the parties. The terms of Article 4, therefore, made clear the voluntary nature of collective contract bargaining by the social partners. The Convention did not require that ratifying States took any steps to constrain the social partners in their negotiations. States parties should offer, however, a framework that allowed the social partners to negotiate together working conditions as well as procedures to facilitate their bargaining.

In Switzerland, recourse to voluntary bargaining between workers' and employers' organizations with a view to concluding a collective agreement was based on long tradition. Voluntary bargaining was also helped by the fact the numerous federal laws, such as the Code of Obligations set only threshold standards (i.e. semi-obligatory) which could be derogated by collective agreements. The Act of 17 December 1993 on information and consultation of workers in enterprises also favoured negotiations. According to this Act, workers' representatives were given a right to participate in the following areas: safety at work and health protection, enterprise transfer, collective dismissals. Collective agreements were regulated by the principle of contract freedom, in full respect for the principle of independence of the parties. The State did not intervene in their negotiation or their conclusion. Collective agreements were regulated by sections 356 to 358 of the Code of Obligations, which laid down the rules concerning the parties, the form, the duration and the effects of collective agreements; these could be concluded by a workers' organization on the one hand and by an employers' organization or one or several employers on the other (section 356). Swiss legislation featured no restriction as to the recognition of trade unions for the purposes of collective bargaining. The Code of Obligations also stipulated that the clauses of a convention that constrained employers or workers to affiliate themselves to a contracting association were null and void (section 356a). Collective bargaining was encouraged by the creation of organisms and procedures that aimed to make it easier. The Swiss system responded to the requirements of the Convention in this respect. As it was noted in paragraph 247 of the 1994 General Survey on freedom of association and collective bargaining, the system should aim "to encourage by all possible means free and voluntary collective bargaining between the parties, allowing them the greatest possible autonomy, while establishing a legal framework and an administrative structure to which they may have recourse, on a voluntary basis and by mutual agreement, to facilitate the conclusion of a collective agreement". Conciliation tribunals at cantonal and federal level met these requirements. According to section 35 of the Federal Act of 18 June 1914 on work in factories, the cantons were obliged to set up permanent public offices with a view to settling, in a friendly manner, disputes between manufacturers and workers mainly aiming at the concluding and renewing of a collective agreement. Cantons were authorized to extend the jurisdiction of these tribunals. They could intervene alone or at the request of the authorities or interested parties. The procedure was free and subsidiary to the one the parties would have agreed upon conventionally. At the request of the parties, the conciliation tribunal could become an arbitration tribunal. At the federal level, the conciliation tribunal was regulated by the Federal Act of 1949 on the federal conciliation tribunal on collective labour conflicts. The federal office could be set up on a case-by-case basis by the Minister of the Economy, who intervened only at the request of the parties. The procedure was rapid, oral and free and was subsidiary to the one foreseen as a conventional tripartite conciliation organism. At the parties' request, the Federal Office of Conciliation could also issue an arbitrary award.

In addition, the Government's report of 2001 specified the circumstances in which the Ministry could take direct action to facilitate the renewal of a collective agreement, for example in the construction sector. As the conclusion of a collective agreement was based on the principle of contractual freedom and independence of the parties, it seemed difficult to imagine a state intervention aimed at constraining the parties to negotiate if they did not wish to. The application of the Convention was therefore ensured in Switzerland. Finally, the Committee of Experts requested statistical data on collective agreements and the number of workers covered. In May 2003, when consolidated statistics were last drawn up, the data showed the following situation:

- there were some 3.9 million active persons, of whom 3.3 million were salaried or apprenticed;

- 594 collective agreements were in force, covering some 1,414,000 salaried employees, of whom 36.3 per cent were women;

- 449 collective agreements contained provisions on minimum wages, covering 1,169,000 salaried employees, of whom 39.9 per cent were women;

- 36 collective agreements were extended, covering 360,800 salaried employees, of whom 41.2 per cent were women.

Statistics broken down by size of enterprise and sector of economic activity were available on the web site of the Federal Statistics Office.

The Worker members recalled that the failures exposed by the Committee of Experts with respect to Switzerland's application of Convention No. 98 highlighted the inadequate protection against anti-union dismissals. The Committee on Freedom of Association had requested the Government to re-examine this question in order to guarantee effective protection. Concerning acts of interference, the Government had not provided any information regarding employers that attempted to divide trade unions, either by creating their own associations or by addressing themselves to staff committees. With respect to the promotion of collective bargaining, it seemed that the public authorities had not taken any measures to remedy the erosion of collective bargaining, while collective agreements covered only a third of employees. The Worker members considered this case to be of high importance because it showed the tendency of the depreciation of free and voluntary collective bargaining. Slowly but surely, Switzerland was turning from collective bargaining towards negotiations directly with the personnel.

The Employer members were of the view that only a preliminary discussion could be held on this case, as the observation of the Committee of Experts contained only allegations and no factual findings, nor the perspective of the Government and the Swiss employers. It was not appropriate to discuss the case at this stage, especially since the Government had not had the opportunity of responding and a report was due in the near future. With regard to Articles 1 and 3 of the Convention regarding dismissal due to trade union activities, they questioned the Committee of Experts' applying the principles of a Committee on Freedom of Association case to the Convention in this situation, which was narrower in scope. As regards Article 2, the Employer members did not understand why the Committee of Experts had referred to the fact that the allegations named companies, as this was not constructive. Finally, there was an assertion on voluntary collective bargaining which was so general that there was nothing concrete to comment on. They concluded by maintaining that this case had been put on the list of cases prematurely.

The Worker member of Switzerland pointed out that Switzerland enjoyed social harmony, which the trade unions and employers' associations had been ensuring for more that 60 years, despite the fact that the country had witnessed a significant increase in poverty in recent years. While tripartite social dialogue was operational, bipartite social dialogue had shown an alarming decrease as a result of the changes affecting enterprises and the labour market. Collective agreements in force in Switzerland covered 50 per cent of jobs in 1990 and only 36.7 per cent in 2003. The situation had therefore changed radically compared to the period when the Government had proposed, in its message of 24 November 1982 to the Parliament, to ratify the Collective Bargaining Convention, 1981 (No. 154). For several years, the Swiss Federation of Trade Unions (USS/SBG) had been drawing the Government's attention to the dangers the country was incurring as a result of the erosion of labour relations. On several occasions, it had launched an appeal to the Government to undertake to adopt measures to reinforce bipartite social dialogue, in accordance with Article 4 of Convention No. 98. Furthermore, the Swiss Federation of Trade Unions had pointed out in 2004 that the current practice and legislation in force were not in conformity with the provisions of Convention No. 154 and Recommendation No. 163. The decreased coverage of collective labour agreements to only 37 per cent of jobs in Switzerland was evidence of this.

It was obvious that, despite all the efforts the Swiss Federation of Trade Unions had made to draw the Government's attention to the weakness of labour relations in Switzerland, nothing had been undertaken to initiate tripartite dialogue on this matter. In response to the Committee of Experts' observations since 2002, in its reports on the application of Convention No. 98 the Government satisfied itself with referring the ILO bodies to its comments of 1 April 2004 in reply to the complaint submitted by the Swiss Federation of Trade Unions to the Committee on Freedom of Association concerning anti-union dismissals (Case No. 2265). This was contrary to article 22 of the ILO Constitution.

The Swiss Government remained inactive and unresponsive to the increasing calls from workers who, deprived of collective agreements, were subjected to the injustices which the Preamble of the ILO Constitution aimed to combat. The declining impact of collective negotiations affected both workers' and employers' organizations. The speaker regretted that the Union of Swiss Employers was insensitive to a trend that was so dangerous for social stability and cohesion. In July 2003, it had supported the Government's failure to act under the pretext that it valued the principle of contractual freedom and in particular the voluntary nature of negotiation, which implied the parties' independence. However, according to the Swiss Federation of Trade Unions, freedom of negotiation did not imply freedom to negotiate in bad faith! Not only was it unacceptable for the law to unduly limit the parties' independence, but it was also incumbent on the law to encourage social dialogue. The weakening of labour relations in Switzerland was the result of the exclusion of trade unions by certain employers who preferred to negotiate directly with staff representatives, in violation not only of labour legislation but also of the ILO instruments which only authorized collective negotiation with representatives of the workers concerned in the absence of trade unions. The Committee of Experts and the Committee on Freedom of Association had formulated many comments and decisions in this respect. The Government had received information on a number of enterprises concerned by this phenomenon. The Swiss Federation of Trade Unions expected the Government to adopt measures to prevent the proliferation of anti-union actions, and in particular to ratify Convention No. 135.

The third observation of the Committee of Experts concerned the protection against anti-union dismissals which had been the object of a procedure before the Committee on Freedom of Association. In accordance with the recommendation adopted by the ILO Governing Body, a tripartite discussion had taken place. It had allowed the current situation to be examined, in law and in practice, with a view to adopting measures to ensure effective protection in practice. The Swiss Federation of Trade Unions had proposed the adoption of a mechanism for the previous announcement of dismissals, in accordance with Recommendation No. 143 which provided for a detailed and precise definition of the reasons justifying termination of work relations and several levels of consultation; a special recourse procedure; the reinstatement in the event of unjustified dismissal, with payment of unpaid wages and with maintenance of any acquired rights. While "Travail.Suisse", the second most representative trade union in the country, had supported this proposal, the employers' representatives were opposed to any changes in the legislation. The Swiss trade unions were not asking the State to do their work. They simply wanted it to create conditions enabling them to fully discharge their functions in accordance with the international labour legislation to which Switzerland had adhered.

The Employer member of Switzerland stated that the Government had been given until 1 September 2006 to provide an answer to the Committee of Experts' comments and he therefore was astonished that this case was discussed. In practice, Switzerland did not ratify a Convention unless its national legislation already fulfilled its requirements. The Union of Swiss Employers considered that all provisions of Convention No. 98 were perfectly applied in Switzerland. With respect to the accusations by the Swiss Federation of Trade Unions (USS/SBG) concerning the protection against anti-union dismissals, the Union of Swiss Employers fully supported the Government's reply addressed to the Committee on Freedom of Association concerning Case No. 2265, in which the Government rightly rejected the arguments put forward by USS/SBG and asked the Committee to take no further action in this matter. Besides, it was not appropriate to discuss this matter since this case was currently before the Committee on Freedom of Association. With respect to the protection against certain acts of interference and the reference made to certain enterprises, it was unacceptable to hold enterprises responsible for international obligations incumbent upon States. Thus, any discussion concerning cases of individual enterprises did not fall within the scope of the work carried out by this Committee. Finally, with respect to collective bargaining, the speaker stated that this was the concern of the social partners, and that in addition to legal provisions that permitted them to freely have recourse to collective bargaining, organizational and procedural measures existed that could, if necessary, facilitate the negotiations. Therefore, he considered that in this matter the public authorities did not need to take any particular action. Employers and workers were completely free to voluntarily negotiate in strict respect of the provisions of the Convention, and in this regard also Switzerland fully conformed to the requirement of Convention No. 98.

The Worker member of France stated that violations of the Convention were often caused by a misinterpretation of its Articles. Thus, the guarantees that stemmed from the collective bargaining were being circumvented by incitements to negotiate at the most local level possible - the level at which workers were the most exposed to pressure and might fear to unionize. At the same time, the voluntary character of collective bargaining was circumvented to justify this recalcitrance. Within the context of the increase in unemployment and job insecurity, it seemed that the condition of "necessity" in Article 4 of the Convention had been fulfilled for the Government to react. The Government's action did not constitute any interference because it sought to preserve the voluntary character of negotiation, which required, moreover, effective measures of protection for each party, and particularly the protection against anti-union dismissals. This case of Switzerland was important because, if the Government met the legitimate demands of the trade unions, it could set an example.

The Worker member of Romania observed that Switzerland experienced a decrease in the coverage of collective agreements, a fact that placed the country at the same level as that of the new member States of the European Union. Many ILO member States had ceased to actively promote collective bargaining. Even though there was general agreement about the benefits of social dialogue, trade unions faced the employers' refusal to engage in dialogue. What purpose did the right to form trade unions serve if employers were able to ignore or even suppress trade unions under the pretext of their freedom to choose whether they would negotiate or not? It was inconceivable that Convention No. 98 afforded the right not to negotiate, since the right to collective bargaining constituted one of the fundamental principles of the ILO. The refusal to engage in collective bargaining amounted to a denial of justice, which prevented trade unions from carrying out their mission, namely defending their members' interests, and led to the individualization of labour relations. In view of this, the behaviour of a country like Switzerland was of major importance and, for this reason, the Government should bring its legislation and practice on collective bargaining into conformity with Convention No. 98.

The Worker member of Pakistan noted that Switzerland was a kind host to the International Labour Conference and a model of a democratic State with social justice. The Government had stated that workers dismissed for discrimination could be reinstated under the Equality Act, and that courts could grant compensation of six months as a remedy. Nonetheless, the Swiss Federation of Trade Unions had provided examples of court decisions which, while recognizing that certain dismissals had occurred due to trade union activities, had only granted compensation of three months. The Committee on Freedom of Association had pointed to the necessity of adequate protection from unjust dismissals due to trade union activity, including the remedy of reinstatement. This principle was amply documented in the cases of the Committee on Freedom of Association and in its Digest of decisions. The speaker further called on the Government to respect the principles of non-interference in trade unions, especially as regarded the practice of fostering staff associations to rival established unions, and to promote a culture of mutual trust and respect in collective bargaining. He hoped that the Swiss Government would take measures to bring its laws and practice in line with these principles.

The Government representative emphasized that several speakers, especially the Worker members, had relied on the reports to which the Committee of Experts referred in their observation. However, attention should be drawn to the fact that of these three reports, the first referred to Convention No. 87, not Convention No. 98; the second to the allegations concerning Convention No. 98, which were currently considered by the Committee on Freedom of Association, as well as Convention No. 135, which Switzerland had not ratified; and the third to Convention No. 144. With regard to the case pending before the Committee on Freedom of Association, it would be premature to draw any conclusions, since it had not been closed. In the Government's opinion, the question of representativity of trade unions was not up to the Government to resolve. In addition, in Switzerland a series of mechanisms were in place, through which workers and their associations could assert their rights and make requests with a view to ensuring their representativity. If a right was denied, there was a breach of law and legal recourse was possible. As to the question of Article 4 of the Convention, it should be noted that the statement from the federal Government, which had been submitted to Parliament in the process of ratifying Convention No. 98, had been approved by the Office. In the opinion of the speaker, the only conclusion the Conference could draw was that the opinion given by the Office was not valid any more.

The Worker members concluded by emphasizing once again that the case at hand illustrated what had become a trend in many countries, namely the practice of openly or discreetly discouraging collecting bargaining. They noted that the comments of the Swiss Federation of Trade Unions dated from 2002, and that the Committee on Freedom of Association had taken position on these in 2003. Nevertheless, the Government had preferred to expound its views on other Conventions rather than on the comments of the Committee of Experts regarding fundamental questions concerning the application of Convention No. 98. The Workers requested that the conclusions delivered a clear message on the significance of collective bargaining, which was at the heart of industrial relations, and that they requested the Government to take measures to revitalize social dialogue and to reply to the observations of the Committee of Experts on the question of anti-union dismissals and acts of interference. The Government should also submit a report to the Committee of Experts on the action taken with regard to the points raised by the Committee.

The Employer members reiterated that at this procedural juncture, no concrete conclusions could be drawn, as the case concerned only assertions and no established facts. The most important point was that the Government had committed itself to provide a full report on this matter. The conclusions should only recall the principles of Convention No. 98 and note the Government's response.

The Government representative took note of the Committee's conclusions and wished to make a short observation concerning the reference in the conclusions to tripartite discussion. When his Government ratified Convention No. 144, it was specified in the declaration accompanying the instrument of ratification that the procedure for consultations provided under the Convention did not replace the structure of social dialogue and collective bargaining between social partners in force in Switzerland. He also emphasized that such tripartite discussions did not replace the parliamentary and constitutional rules and procedures specifically related to the implementation of the principles of direct democracy in his country. By virtue of these principles, and notwithstanding the importance of social dialogue, workers and employers as well as their respective organizations could avail themselves of democratic parliamentary mechanisms to exercise their rights either before the Parliament (by means of interventions) or directly before the sovereign people (by means of popular initiatives, for example).

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The Committee takes note of the Government. It also notes the communications of September 2010 from the Union of Swiss Employers (UPS) and the Swiss Federation of Trade Unions (USS). Lastly, the Committee notes the communication of 24 August 2010 from the International Trade Union Confederation (ITUC). The Committee requests the Government to send observations thereon.

Articles 1 and 3 of the Convention. Protection against anti-union dismissals. In its previous comments the Committee noted the observations by the USS, endorsed by the ITUC, objecting, on the basis of cases ruled on by the courts, that protection against anti-union dismissals was not adequate. The Committee also noted the Government’s reply maintaining, on the contrary, that protection against anti-union acts, including recourse to the courts, is adequate. According to the Government, Swiss law offers adequate protection to trade union delegates and representatives, thereby fully complying with the Convention; the compensation for unfair dismissal which may amount to as much as six months’ pay is sufficiently dissuasive given that the great majority of Swiss firms are small and medium-sized enterprises. The Government added that parliament had been unwilling to incorporate in Swiss law on employment contracts the principle of reinstatement of the dismissed worker, which in any event is not required by the Convention; so there was no question of proposing an amendment to the law to introduce further protection against acts of anti-union discrimination as it would be doomed in advance to failure. Lastly, the Government stated that following the adoption in November 2004 of the interim conclusions of the Committee on Freedom of Association in Case No. 2265, the matter had been notified to the Tripartite Federal Committee for ILO Affairs, but in the absence of agreement, it was not deemed necessary to take measures to strengthen protection against unfair dismissal on anti-union grounds or make it more effective in practice. The Committee expressed the view that while the applicable compensation for unfair dismissal (up to six months’ wages) may be a deterrent for small and medium-sized enterprises, this is not so for high productivity and large enterprises. It accordingly asked the Government to resume tripartite dialogue in the light of its comments on the issue of adequate protection against anti-union dismissals.

The Committee notes that in its latest report, the Government again expresses serious concern that the Committee should apply to the Convention principles drawn from the interim conclusions of a case that is under examination by the Committee on Freedom of Association and is narrower in scope. The UPS endorses this position in its latest communication. The Committee furthermore notes the information sent by the Government that the Federal Council decided on 16 December 2009 to reconsider the matter of penalties for unfair dismissal, including the dismissal of elected staff representatives, dismissal for membership or non-membership of a trade union or for lawful trade union activity, but solely for the purpose of looking into an increase of the maximum penalty and not of replacing the principle of compensation with reinstatement of the worker. The Committee notes that according to the Government’s report, the first draft of a bill is to be debated in the autumn of 2010 with specific proposals for amendments to the law. The Committee notes that in its latest communication, dated 17 September 2010, the USS indicates that there are still anti-union practices and dismissals and that the legislation has no dissuasive effect at all on employers, and particularly large enterprises. The USS states that it has submitted many new cases of anti-union dismissals to the Government with a view to amendment of the legislation, but to no avail so far. However, while objecting that the Government has taken no action despite the ILO’s recommendations, the USS welcomes the Government’s initiative to hold consultations on improving protection against dismissal which were to start in September 2010. The Committee takes note of this information, welcomes the decision of the Federal Council and hopes that the consultations on improving protection against unfair dismissal, including dismissal on anti-union grounds, will take account of the comments it has been making for several years on the application of Article 1 of the Convention. It hopes that in its next report the Government will provide information on the outcome of the consultations and the measures taken.

Article 4. Promotion of collective bargaining. In its previous comments the Committee asked the Government to indicate how the law and case law address improper practices in collective bargaining (proven bad faith, unwarranted delay in the bargaining process, failure to comply with agreements, etc.), and to indicate any measures taken to promote the broadest possible development and use of machinery for the voluntary negotiation of collective agreements. In 2008 the Government referred to the case law concerning the obligation to engage in collective bargaining, indicating that precedent also establishes an obligation to negotiate in good faith. The Committee asked the Government to provide copies of the court rulings in question together with any other relevant rulings on improper practices in collective bargaining. The Committee notes that for the period covered by the report, the Government indicates that there have been no court rulings involving matters pertaining to the application of the convention. The Committee requests the Government to send a copy of the case law to which it referred in its 2008 report. It also asks the Government to send up to date statistical information on the number of collective agreements by sector and the number of workers covered.

Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

The Committee notes the information provided by the Government in reply to its previous observation. It also notes the comments of the Union of Swiss Employers (UPS) and the Swiss Federation of Trade Unions (USS/SGB), communicated by the Government. The Committee further notes the comments made by the International Trade Union Confederation (ITUC) on 29 August 2008 which largely refer to matters already raised and it requests the Government to provide its comments in reply.

Articles 1 and 3 of the Convention. Protection against anti-union dismissals. In its previous comments, the Committee noted the comments of the USS according to which protection against anti-union dismissals was not adequate based on a number of court decisions on this matter. The Committee also noted the Government’s reply, provided during the discussion in the Committee on the Application of Standards at the 95th Session of the International Labour Conference (June 2006) and in its report, which on the contrary emphasized the adequacy of protection against anti-union acts, including recourse to the courts. According to the Government, Swiss law provides adequate protection for trade union delegates and representatives, thereby fully complying with the Convention; the current system relating to unjustified termination of employment takes into account the fact that compensation, which may attain six months’ wages, constitutes a sufficiently dissuasive measure in view of the fact that the great majority of Swiss enterprises are small and medium-sized enterprises; the Parliament did not wish to introduce into Swiss law respecting contracts of employment the principle of the reinstatement of dismissed workers, which is not required by the Convention; the principles referred to were established democratically and confirmed by recent parliamentary interventions, and the question does not arise of proposing a legislative amendment establishing additional protection against acts of anti-union discrimination, as it would be doomed in advance to failure; the courts take into account all objective, and even subjective circumstances in granting compensation to workers, the amount of which is determined equitably; cases are the subject of regular legal action before the courts and the rights of the parties are respected, even in cases in which the parties have agreed upon arrangements on the basis of legal texts; and only five of the 11 cases raised by the USS in its complaint of 2003 may be considered as valid. The Committee also noted the indication that the Federal Council provided detailed explanations of the tripartite negotiations held following the adoption in November 2004 of the interim conclusions of the Committee on Freedom of Association in Case No. 2265. The Tripartite Federal Commission for ILO Affairs examined the case. However, in the absence of agreement, it was not considered necessary for measures to be adopted to strengthen protection against unjustified dismissals on anti-trade union grounds or to make it more effective in practice. Nevertheless, according to the Government, the discussion on strengthening protection against unjustified dismissals may be pursued in a broader political and democratic context at the national level and parliamentary and democratic channels exist to ensure a serene political debate at the national level. The Committee noted that, according to the USS, proposals concerning protection against anti-union dismissals were discussed in November 2005, but were not retained. Moreover, according to the USS, anti-union practices and dismissals still occurred and judicial practice did not correspond to the criteria for protection against acts of anti-union discrimination set out by the Committee in its 1994 General Survey.

The Committee referred to the recommendations made by  the Committee on Freedom of Association during its examination of Case No. 2265 in November 2006 (see the 343rd Report of the Committee on Freedom of Association, paragraph 1148) and requested the Government to keep it informed of any development towards greater protection against anti-union dismissals, and any development in case law respecting the compensation granted for unjustified dismissal for anti-union reasons, including by cantonal courts.

The Committee notes the Government’s brief response in which it confines itself to expressing once again its deep concern at the fact that the Committee is applying to the Convention the principles drawn from interim conclusions of a case that is under examination by the Committee on Freedom of Association and which is more restricted in scope. The Committee notes that the UPS in its communication indicates its approval of the Government’s observation. The Committee recalls that the methods of application of the Convention are very varied, but are only acceptable in so far as they are effective, and that its previous comments, rather than proposing a specific means of protection against acts of anti-union discrimination, pursued the objective of the effective application of Article 1 of the Convention. The Committee notes the Government’s statement concerning the very limited number of cases of discrimination presented in 2003 by the USS. However, the Committee is of the view that, while the compensation applicable for unjustified dismissal (up to six months’ wages) may have a dissuasive effect for small and medium-sized enterprises, this is less likely for high productivity and large enterprises. The Committee therefore requests the Government to relaunch tripartite dialogue in the light of its comments on the issue of adequate protection against anti-union dismissals. The Committee also requests the Government to indicate, where appropriate, any developments in case law concerning the compensation granted, and all other forms of reparation, in cases of unjustified dismissal for anti-union reasons, including by cantonal courts. The Committee hopes that the judicial authorities will take its comments into consideration.

Article 2. Protection against acts of interference. In its previous comments, the Committee noted the observations of the USS concerning the establishment of staff associations partially financed by employers and the replacement of unions by staff committees. It also noted the Government’s reply in which it recalled that legal procedures allowed the social partners to assert their rights and its indication that the courts could refer to a decision of December 2005 of the Collective Labour Relations Chamber of the Canton of Geneva concerning convictions for acts of interference and to order the holding of collective negotiations. The Committee requested the Government to indicate any development in case law, including at the cantonal level, on this matter. The Committee notes the Government’s indication in its report that the ruling of December 2005 by the Collective Labour Relations Chamber of the Canton of Geneva referred to well-established federal case law that is followed by the majority of jurisprudence. Accordingly, the scope of divergencies between cantonal courts is being reduced. According to this case law, which places limits on contractual freedom based on abuse of the rights and protection of the personality of trade unions, the employer may not refuse without a valid reason to negotiate with a trade union for the sole purpose of weakening the position of the workers. The Government adds that a union has the right to adhere to a collective labour agreement that has already been concluded, subject to its representative status. The Committee notes this information.

Article 4. Promotion of collective bargaining. In its previous comments, the Committee noted the observations of the USS concerning the inadequacy of the scope of collective bargaining in Switzerland and the absence of initiatives by the public authorities to encourage voluntary collective bargaining machinery within the meaning of the Convention. Noting the Government’s reply, including the statistical data for 2003 concerning the collective agreements concluded in the country, the Committee requested the Government to indicate the manner in which the law and case law address abusive practices in relation to collective bargaining (substantiated acts of bad faith, unjustified delay in the holding of negotiations, failure to comply with agreements, etc.), and any measures adopted to promote the broader development and utilization of machinery for the voluntary negotiation of collective agreements. In its reply, the Government refers to the case law described above concerning the obligation to engage in collective bargaining, to which is added the principle set out in case law of the obligation to bargain in good faith. The Government adds that the lawful nature of strikes targeting the conclusion of a collective labour agreement is an additional means of pressure available to trade unions. The Government also refers to the existing procedures for the settlement of disputes at the cantonal and federal levels. Finally, the Government provides the official statistic that 611 collective labour agreements were in force covering 1,520,200 employed persons as of 1 May 2005, and it indicates that the coverage rate of collective agreements, according to a study, is 48 per cent and should tend to increase in future years. The Committee notes these indications and requests the Government to provide copies of the court rulings to which it refers, and any other relevant ruling relating to abusive practices in respect of collective bargaining.

Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee notes the Government’s report for the period ending May 2006, which was received at the end of its previous session (November–December 2006) and of which it decided to postpone the examination. The Committee notes that the Government attaches comments by the Union of Swiss Employers (UPS) and the Swiss Federation of Trade Unions (USS). It also notes the comments of the International Confederation of Free Trade Unions (ICFTU, now ITUC – International Trade Union Confederation), dated 12 July and 10 August 2006, which relate to issues that are already under examination. The Committee further notes the discussion in the Committee on the Application of Standards at the 95th Session of the International Labour Conference (June 2006).

Articles 1 and 3 of the Convention. Protection against anti-union dismissals. In its previous observation, the Committee noted the comments of the USS according to which protection against anti-union dismissals is not adequate and its reference to a number of court decisions on this matter. In its statement to the Conference Committee, the Government however indicated that adequate protection did, in practice, exist, and included recourse to the courts against acts of anti-union interference. In its report, the Government emphasizes that: (a) Swiss law provides adequate protection for trade union delegates and representatives, thereby complying fully with the Convention; (b) the current system under Swiss legislation relating to unjustified termination of employment takes into account the fact that compensation which may attain six months’ wages constitutes, particularly in the view of Parliament, a sufficiently dissuasive measure in view of the fact that the great majority of Swiss enterprises are small and medium-sized enterprises; (c) the Parliament did not wish to introduce into Swiss law respecting contracts of employment the principle of the reinstatement of dismissed workers, which is not required by the Convention or the ILO’s supervisory bodies; (d) the principles referred to previously were set out democratically and confirmed by recent parliamentary interventions, and the question does not therefore arise in this context of proposing a legislative amendment establishing additional protection against acts of anti-union discrimination, as it would be doomed in advance to failure and would further increase the parliamentary workload; (e) the courts take into account all objective, and even subjective circumstances in granting compensation to workers, the amount of which is determined equitably; (f) the cases referred to by the USS have all been the subject of regular legal action before the courts and the rights of the parties have been respected, even in the cases in which the parties have agreed upon arrangements on the basis of legal texts; and (g) only five of the 11 cases raised by the USS in its complaint of 14 May 2003 may be considered as valid.

The Government adds in its report that the Federal Council provides detailed explanations of the tripartite negotiations held following the adoption in November 2004 of the interim conclusions of the Committee on Freedom of Association in Case No. 2265. The Tripartite Federal Commission for ILO Affairs examined the case. However, in the absence of agreement, it was not considered necessary for measures to be adopted to strengthen protection against unjustified dismissals on anti-trade union grounds or to make it more effective in practice. However, it is recognized that the discussion on strengthening protection against unjustified dismissals may be pursued in a broader political and democratic context at the national level.

The Government indicates that the parliamentary and democratic channels exist to ensure a serene political debate at the national level (parliamentary interventions and popular initiatives) and accordingly to achieve the objective pursued by the USS of effective protection in practice against unjustified dismissals for anti-trade union reasons. Finally, the Government reports recent changes in the case law respecting penalties against dismissals, which it describes as being more flexible and more favourable to the interests of dismissed workers than described by the USS.

In its comments, the USS observes that it put forward proposals relating to protection against anti-trade union dismissals. These proposals were discussed in November 2005, but were not retained by the Government as they were not accepted by the employers. The USS adds, citing cases, that anti-union practices and dismissals still occur and that judicial practice does not correspond to the criteria for protection against acts of anti-union discrimination set out by the Committee in its 1994 General Survey.

The Committee notes that the Committee on Freedom of Association, in its recommendations when it last examined Case No. 2265 in November 2006, requested 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, and it encouraged 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 dismissals (see 343rd Report of the Committee on Freedom of Association, paragraph 1148). In these conditions, taking into account the Government’s statement that the debate on reinforcing protection against unjustified dismissals may be pursued in a broader political and democratic context at the national level and noting that it has not been informed, either by the Government or the trade union organization, of developments during the course of 2007 following the conclusions of the Committee on Freedom of Association, the Committee requests the Government to keep it informed of any development towards greater protection against anti-union dismissals and any development in case law respecting the compensation granted for unjustified dismissal for anti-union reasons, including by cantonal courts.

Article 2. Protection against acts of interference. In its previous observation, the Committee noted the misgivings expressed by the USS concerning the establishment of staff associations partially financed by employers and the replacement of unions by staff committees, all at the instigation of employers so as not to have to negotiate with the unions. The Committee notes the Government’s indication in its report that legal procedures allow the social partners to assert their rights. The Government indicates that the courts can penalize acts of interference and order the holding of collective bargaining, and it refers in this respect to a decision of December 2005 of the Collective Labour Relations Chamber of the Canton of Geneva finding in favour of the participation of an enterprise union in collective bargaining. In its comments, the USS expresses the hope that federal case law will develop in the same direction as in the above decision, as views currently differ between cantons on this matter. The Committee requests the Government to keep it informed of developments in case law, including at the cantonal level, on this matter.

Article 4. Promotion of collective bargaining. The Committee noted previously that, according to the USS, collective bargaining in Switzerland is not sufficiently extensive and for years the Swiss Confederation has shown no interest in furthering the implementation of the Convention. The USS also refers to the lack of initiatives by the public authorities to encourage voluntary collective bargaining machinery within the meaning of the Convention. In its latest comments, the USS recalls that, according to the latest federal statistics, the coverage of collective bargaining is declining. It indicates that it has proposed tangible measures to promote collective bargaining and does not understand the Government’s inaction when the majority of enterprises are small and medium-sized and it is materially impossible for trade unions to approach all enterprises that are not affiliated to an employers’ organization, just as it would be impossible to take action in court against all those enterprises refusing to engage in collective bargaining.

The Government provided statistical data for 2003 to the Conference Committee and reported that there were 594 collective agreements in force covering 1,414,000 employees, of whom 36.3 per cent were women. The total proportion of employees covered by collective agreements is 36.7 per cent, according to official figures. Finally, these agreements primarily cover the construction sector (where 66.4 per cent of workers are covered by a collective agreement), industry (40.5 per cent), services (35 per cent) and agriculture (7.2 per cent). In its report, the Government adds that a collective labour agreement can be extended by the federal and cantonal authorities at the request of the parties to the agreement and thereby be made applicable to all employers and workers in an economic branch or occupation, on condition that certain legal requirements are fulfilled.

The Committee notes these indications. It requests the Government to indicate the manner in which the law and case law address abusive practices in relation to collective bargaining (substantiated acts of bad faith, unjustified delay in the holding of negotiations, failure to comply with agreements, etc.), and any measures adopted to promote the broadest development and utilization of machinery for the voluntary negotiation of collective agreements.

Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes the Government’s report received at the end of its session as well as the comments of the International Confederation of Free Trade Unions (ICFTU), dated 12 July and 10 August 2006. The Committee further notes the discussion, which took place at the Conference Committee in June 2006. The Committee notes that the Government transmits the comments of the Union of Swiss Employers (UPS) and the Swiss Federation of Trade Unions (USS).

Given that the extensive report of the Government was received late, the Committee will only be able to examine these questions at its next session.

Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee notes the Government’s report on the application of the Convention. It also notes the comments of 15 February 2002, 11 October 2002 and 29 October 2004 by the Swiss Federation of Trade Unions (USS/SGB), and those of 12 November 2004 by the Union of Swiss Employers (UPS) asserting that the provisions of the Convention are fully applied in Switzerland.

Articles 1 and 3 of the Convention. Protection against anti-union dismissals. The Committee notes that the USS/SGB asserts that protection against anti-union dismissals is inadequate and refers to a number of court decisions on this matter. The Committee also notes the Government’s reference to its comments of 1 April 2004 responding to a complaint filed to the Committee on Freedom of Association (Case No. 2265) by the USS/SGB on 14 May 2003. The Committee notes in this connection that in its recommendations, the Committee on Freedom of Association 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 so that, in the light of the principles cited by the above Committee, and if the tripartite discussion considers it necessary, measures are taken to ensure that such protection is truly effective in practice [see 335th Report, paragraph 1356]. The Committee concurs with this recommendation.

Article 2 of the Convention. Protection against acts of interference. The USS/SGB mentions its misgivings about the fact that, to avoid having to negotiate with unions, employers are instigating and partly financing the establishment of staff associations and even the replacement of unions by staff committees. Noting that the USS/SGB mentions a number of companies by name, the Committee requests the Government to respond to these observations and to ensure that the principle of non-interference in trade unions is observed, as required by Article 2 of the Convention.

Article 4 of the Convention. Promotion of collective bargaining. According to the USS/SGB, collective bargaining in Switzerland is not extensive enough and for years Switzerland has shown no interest in furthering the implementation of the Convention. Furthermore, the public authorities have done nothing to encourage voluntary bargaining within the meaning of the Convention, and it has become common practice in Switzerland for trade unions to be kept out of discussions on working conditions, as management prefers to deal with staff representatives in order to weaken the employers’ and workers’ organizations concerned. The Committee requests the Government to respond to these observations and to ensure that Article 4 of the Convention is observed. It also requests the Government to supply statistical information on the number of collective agreements by sector and the number of workers covered.

Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee notes that the Government’s report has been received during its session. The Committee will examine at its next meeting both the Government’s report and the comments made by the Union of Swiss Trade Unions and by the Union of Swiss Employers.

Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee notes the observations of the Union of Swiss Trade Unions (USS) in its communications dated 15 February and 11 October 2002 on the application of the Convention, and requests the Government to supply its comments in this respect.

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

The Committee notes the information contained in the Government’s first report, along with the observations of the Union of Swiss Trade Unions.