Individual Case (CAS) - Discussion: 1993, Publication: 80th ILC session (1993)

A Government representative stated that his Government in general accepted the comments of the Committee of Experts and that he would contest neither their substance nor their form. He specified that the two questions raised by the Committee of Experts in points 2 and 3 of its comments were pending in Parliament. Concerning the reduction of benefits in the case of serious and wilful misconduct, there was no longer any discrepancy, as regards the draft law currently under examination, between the requirements of the Convention and the proposed legislation, which should definitely regulate the question in due course. As to the lowering of the retirement age for certain categories of workers, his Government waited for Parliament to take up the relevant matter.

Another Government representative, technical adviser and representative of the Federal Office of Social Insurance, stressed, concerning point 2 of the Committee of Experts' comments, that the above-mentioned draft legislation, which the Government did not oppose, was before Parliament and had already been approved by one of the two Houses, the other having to do so before the end of this year. Concerning point 3 of the comments, she stated that in the framework of the second part of the tenth revision of the AVS, it was expected to permit men to anticipate by three years the possibility of receiving the old-age benefit, but with the reduction of 6.8 per cent for a year of anticipation. However, it was still premature for the Government to speak on this point because it was not certain that the project of the Federal Council would not be modified before its definite adoption by the Houses. Finally, concerning point 4 of the Committee of Experts' comments, she stated that the rate of 45 per cent prescribed by the Convention had already been passed and that account had been taken, as the Committee had suggested, not only of the benefits accorded by the general Old-Age and Survivors' Insurance Act, but also of benefits due under the Act on occupational insurance. However, it was the obligatory minimum provided by the latter that was calculated, although an important majority of the insured (86.8 per cent in 1987) were also covered by complementary benefits and only 1.3 per cent of the pensioners received the obligatory minimum.

The Employers' members appreciated the precise statements made by the Government representatives and were confident that the necessary measures would be taken in future and that the Committee would not need to come back to this case. As regards the possibility to fix women's retirement age at 64 years, which was denounced by the Swiss Federation of Trade Unions (USS), they considered it unnecessary to examine that question since the Experts had not specifically commented on this point.

The Workers' members also welcomed the information supplied by the Government and its acceptance of the remarks made by the Experts. They nevertheless stressed the fact that the problem of the application of the Convention had existed for several years and that, although this Committee was treating it for the first time, it had been the subject of direct requests in 1980 for the first time, and subsequently in 1981, 1983, 1985 and 1989. They found this unacceptable and considered it essential to advance toward the solution of the questions examined by the Committee of Experts. Concerning point 2 of the comments, the Workers' members stressed the fundamental character of the limitation of the workers' responsibility to wilful misconduct. Besides, they referred to a decision of 23 October 1985 of the Federal Tribunal on Insurance, which expressly recognized that Swiss legislation was not in conformity with the Convention. As to the lowering of the retirement age of persons engaged in arduous or unhealthy work, the Workers' members insisted that the Swiss Government should implement Article 15, paragraph 3, of the Convention because it concerned the matter of workers' dignity.

The Government representative stated that the Committee would be duly informed of the most recent developments on this matter since a detailed report would be submitted covering the period ending 30 June 1993. He observed that, in the same decision as mentioned above by the Workers' members, it was said that there was a problem of conformity between the Federal Invalidity Insurance Act and the Convention regarding the question of wilful and serious misconduct. The decision also stated that the Convention was not directly applicable in Switzerland, which meant that its application required changes of a juridical nature. Such changes could take time since it was for Parliament to decide after discussing the relevant draft law. He was nevertheless confident that Parliament would be able to retrieve the matter as a whole, which had been suspended, so as to treat the question of integration into the European Community and that legal texts necessary for the implementation of the Convention would enter into force in the shortest time possible.

Direct Request (CEACR) - adopted 2023, published 112nd ILC session (2024)

Direct Request (CEACR) - adopted 2017, published 107th ILC session (2018)

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

Part II (Invalidity benefit), Article 12 of the Convention (in conjunction with Article 32, paragraph 1(e)). In its previous observation, referring to the decisions of 25 August 1993 and 21 February 1994 of the Federal Insurance Court, the Committee asked the Government to bring the national legislation, particularly section 7(1) of the Federal Invalidity Insurance Act (LAI) allowing cash benefits to be reduced in the event of serious negligence, into full conformity with the above provisions of the Convention, which allow benefits to be suspended only where the contingency has been caused by serious wilful misconduct on the part of the person concerned. The Committee notes with satisfaction that, as regards the reduction and refusal of benefits, section 21(1) and (2) of the Social Insurance (General Provisions) Act (LPGA), which came into force on 1 January 2003, specifies that cash benefits may be reduced or refused, inter alia, if the insured person has aggravated the risk concerned or wilfully caused it to materialize; the benefits payable to the insured person’s dependants or survivors may be reduced or refused only if the dependants or survivors have wilfully caused the risk to occur. The LPGA applies to invalidity insurance unless the LAI expressly provides otherwise. The above provisions of section 7(1) of the LAI have been repealed.

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

Part II (Invalidity benefit), Article 12 of the Convention (in relation with Article 32, paragraph 1(e)). The Committee notes the Government’s reply to its previous comments and requests it to refer to the observation that it is making concerning the application by Switzerland of Convention No. 102.

Direct Request (CEACR) - adopted 1996, published 85th ILC session (1997)

Part VII (Miscellaneous provisions), Article 42 of the Convention (in relation to Article 15, paragraph 3). In answer to the Committee's previous comments on the lowering of the retirement age for categories of workers engaged in arduous or unhealthy work, the Government indicates that the Old-Age and Survivors' Insurance Act (AVS), as amended in the tenth revision which will enter into force on 1 January 1997, allows the old-age pension to be claimed early, not only for persons who have worked in arduous or unhealthy occupations, but for the whole population. The Government stresses that in a single system, designed to protect the whole population, it is difficult to lay down a different retirement age for certain categories of workers, as some countries do in the "special" schemes (for example, for seafarers or miners). In addition, examination of Article 15, paragraph 3, of the Convention - in relation to Swiss legislation - shows that only men are affected since it is only for them that retirement age is fixed at 65. For women, the Old-Age and Survivors' Insurance Act, as amended, provides an increase in retirement age which will go from 62 to 64 years in two stages: the age giving a woman entitlement to an old-age pension will be 63 from the year 2001 and 64 from the year 2005. Specifically, it will be possible for men to claim old-age pension one year before retirement age from 1997, two years for men and one year for women from 2001, and two years for women from 2005. With regard to the amount of benefits calculated in application of Article 17 and 18 of the Convention, the Government indicates that this should be in conformity with the requirement of the Convention. In any event, since the tenth revision of the AVS has also fundamentally modified the system of old-age pensions by abolishing the couples' pension and replacing it by individual pensions, it is impossible for the moment to calculate the amount of the pension to which a standard beneficiary would be entitled from 1997, with or without early claim. The Government states that it will give all the appropriate information in its next reports.

The Committee notes this information with interest. It hopes that, in its next report, the Government will be able to confirm that the amount of the pension, in the event of early retirement, will be in conformity with the requirements of the Convention, at least in regard to the categories of workers referred to in Article 15, paragraph 3, of the Convention.

Observation (CEACR) - adopted 1996, published 85th ILC session (1997)

I. With reference to its previous observation concerning Part II (Invalidity benefit), Article 12, of the Convention (in relation to Article 32, paragraph 1(e)), the Committee notes with satisfaction the reversal of the case-law relating to the direct applicability of the above-mentioned provisions of the Convention by the Federal Insurance Court (TFA) in a decision of 25 August 1993, of which the text has been supplied by the Government. In its decision, the TFA considered that Article 32, paragraph 1(3), of the Convention, which provides that cash benefits may be withheld where the contingency has been wilfully caused by the serious misconduct of the person concerned, applies directly and takes precedence over section 7(1) of the Federal Invalidity Insurance Act (LAI) to the extent that this standard of federal law provides, in particular, the reduction of benefits for serious misconduct committed by negligence.

Consequently, the Government concludes in its report that, contrary to the provisions of the Act, negligence, even when serious, is no longer sufficient grounds for reduction of invalidity insurance benefits and that the situation prevailing in Switzerland is in conformity with the provisions of Article 32, paragraph 1, of the Convention, given the self-executing nature of this provision, which is recognized by the TFA. The Government adds that national legislation will be brought officially into conformity with the Convention once the Bill on the general part of social insurance law enters into force. The Committee requests the Government to keep it informed of any developments in this matter, in both legislation and practice.

II. Furthermore, the Committee notes with interest, from the information supplied in the Government's report, the adoption of the tenth revision of the Old-Age and Survivors' Insurance Act which will enter into force on 1 January 1997. The Committee hopes that the Government's next report will contain detailed information on the effects of this legislation on Parts III and IV of the Convention.

Direct Request (CEACR) - adopted 1994, published 81st ILC session (1994)

Part VII (Miscellaneous provisions), Article 42 (in relation to Article 15, paragraph 3). In answer to the Committee's previous comments on the lowering of the retirement age for categories of workers engaged in arduous or unhealthy work, the Government confirms that the Federal Council, as part of the tenth revision of the Old-Age and Survivor's Insurance (AVS), plans to allow men to claim old-age pension three years before the statutory retirement age if they accept a 6.8 per cent reduction for each of the three years. Men wishing to avail themselves of this possibility - such as those who have worked in arduous or unhealthy occupations - could therefore start to claim old-age pension at age 62 at the earliest. Referring to the observations made previously by the Swiss Federation of Trade Unions (USS) alleging that this proposal would lead to a breach of Articles 17 and 18 of the Convention if it came into effect, the Government indicates that in view of the current status of the parliamentary debates on the tenth revision of the AVS, it is too early to come to any conclusion on this point as it is not certain that the Federal Council's proposal, which has already been amended by the National Council, will not undergo further amendment before final adoption by the Chambers. In view of this fact, the Government considers that Article 15 of the Convention requires national laws prescribing a minimum age of 65 for entitlement to old-age pension to lower the minimum age for persons who were engaged in arduous or unhealthy work, but does not specify at what age such persons should be able to claim their entitlements; in other words, legislation which grants old-age pension from the age of 64 years does not come under this provision. In the Government's view, in order to meet also the requirements of Article 18 of the Convention, it would be sufficient for men who receive old-age pension as of age 64 to receive an amount equal to at least 45 per cent of the last wage of a skilled manual male worker as defined in the Convention. The Government is aware that its legislation does not meet the obligations of Article 15, but at present the legislation sets a different retirement age for men and women and so it is not easy to introduce a provision whereby only men who were employed in arduous or unhealthy jobs may receive their old-age pension earlier.

The Committee takes note of this information. It would like to remind the Government that the purpose of this provision of the Convention, which was noted as being of social importance during the preparatory work, is to establish more advantageous social protection for categories of workers whose working conditions are arduous or unhealthy. The discretionary power which States enjoy under paragraph 3 of Article 15 of the Convention should be exercised in keeping with the purpose of this provision and in good faith. In these circumstances, the Committee is bound to express once again the hope that the Government's next report will contain detailed information, in accordance with Article 42, paragraph 2, of the Convention on any progress made in the adoption of measures to ensure that, in practice, workers engaged in arduous or unhealthy jobs may receive old-age pension before the statutory age of retirement. It also hopes that any reductions in pension in the event of early retirement will not affect the application of Articles 17 and 18 of the Convention as concerns this category of workers.

Observation (CEACR) - adopted 1994, published 81st ILC session (1994)

1. The Committee notes with interest the information provided by the Government in its report, and at the Conference Committee in 1993. It also notes with interest the information concerning the new type of pension introduced on 1 January 1993 in the context of the first part of the tenth revision of the Old-Age and Survivor's Insurance (AVS) (Part V of the Convention (Standards to be complied with by periodical payments) in relation to Part III (Old-Age Benefit)).

2. Part II (Invalidity benefit), Article 12 of the Convention (in relation to Article 32, paragraph 1(e)). In its previous comments the Committee raised the matter of the compatibility with the above-mentioned provisions of the Convention of section 7 of the Federal Invalidity Insurance Act (LAI) of 19 June 1959 which provides that cash benefits may be refused, reduced or withheld in the event of serious misconduct of the insured person or his dependants. As the Committee pointed out in its previous comments, suspension of benefits is authorized under Article 32, paragraph 1(e) of the Convention only where the invalidity has been caused by serious and wilful misconduct on the part of the person concerned.

In its report, the Government indicates that the debates in Parliament on the Bill concerning the general part of social insurance law which is to bring the LAI into conformity with the Convention on this matter, have been suspended. It points out that the Bill was initiated by Parliament, since the Committee of the States Council drafted it. The Bill has already been approved by the States Council. The National Council, for its part, has asked for further time to examine it. What is at issue is whether, at a time when numerous specific social security laws are being revised, it would not be more advisable, rather than to elaborate, a Bill on the general part of social insurance law, to draft a law harmonizing the legislation, which would be less complicated than the present Bill. The Government adds that, in any event, the issue is now in the hands of Parliament and that there is no question but that the LAI will be brought into conformity with the Convention by one type of law or another.

The Committee notes this information. It expresses the hope that the parliamentary debates on the issue will be pursued and will lead to the adoption in the near future of a text which will take full account of the above-mentioned provisions of the Convention.

Furthermore, the Government indicates that the Federal Insurance Court reversed the case law by a decision of 25 August 1993, i.e. after the reporting period in question; the Court found that the rule of international law contained in Article 32, paragraph 1, of the Convention applies directly and takes precedence over section 7(1) of the LAI. The Committee notes this information with interest. It asks the Government to provide the text of the above ruling.

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

1. The Committee notes with interest the information supplied by the Government in its report. In particular, it notes with interest the entry into force on 1 January 1992 of the amendment to section 33(ter) of the Federal Old-Age and Survivors' Insurance Act, under which, if there is an annual increase of over 4 per cent in the Swiss consumer price index, the Government is no longer limited to adjusting ordinary old-age, survivors' and invalidity benefits only once every two years.

2. Part II (Invalidity benefit), Article 12 of the Convention (in conjunction with Article 32, paragraph 1(e)). In its previous comments, the Committee raised the question of the compatibility with the Convention of section 7 of the 1959 Federal Invalidity Insurance Act (LAI), under which cash benefits may be temporarily or permanently refused, reduced or withheld where the invalidity has been caused or aggravated by the serious misconduct of the insured person or his dependants. As the Committee has already pointed out, the suspension of benefits is authorized under Article 32(e) of the Convention only when the contingency has been caused by serious and wilful misconduct on the part of the person concerned.

In its reply, the Government indicates that it is planned to abolish the reduction of benefits in the event of serious negligence of the insured person in the Bill on the general part of Swiss social insurance law - which was drawn up by the Committee of the Council of States on the basis of a draft prepared by the Swiss Insurance Law Society and currently being examined. It adds, however, that the Federal Council has a number of priorities including the tenth review of the Federal Old-Age and Survivors' Insurance Act, the reviews of the Federal Sickness Insurance Act and the Federal Occupational Insurance Act and the examination of the relationship between the compulsory basic pension scheme and the compulsory occupational pension scheme. Accordingly, although the Federal Council generally approves the Bill drawn up by the Committee of the Council of States, it would like the review of the above-mentioned Acts to be completed before Parliament debates the new Bill. The Committee takes note of this information. In this connection, the Committee also notes the observations of the Swiss Federation of Trade Unions (USS) communicated to the Government on 12 February 1993. According to the USS, the Federal Council issued an opinion with reservations of the Bill and asked Parliament to suspend its work. While it is aware that the Government has priorities, the Committee none the less reiterates the hope that the Bill on the general part of social insurance law will be adopted shortly and that it will take full account of the above-mentioned provisions of the Convention, on which the Committee has been commenting for many years. It would be grateful if the Government would provide information in its next report on any developments in this respect.

3. Part VII (Miscellaneous provisions), Article 42 (in conjunction with Article 15, paragraph 3). In its previous reports, the Government indicated that the lowering of the age of retirement for certain categories of workers would be examined by the Federal Committee responsible for the tenth review of old-age insurance. The Committee expressed the hope that, in the review, the retirement age of persons engaged in arduous or unhealthy work (currently 65 years for men) would be lowered, in accordance with the provisions of the Convention.

In its reply, the Government states that there have been no new developments during the period covered by the report. The USS, for its part, recalls that, as part of the tenth review of old-age insurance (AVS) currently in process in Parliament, the Committee of the National Council plans to raise women's retirement age to 64. The USS is against this amendment and demands that all questions relating to retirement age and the long-term financing of insurance, particularly in view of demographic trends, be dealt with in the eleventh review of the AVS. In addition, it considers that any reductions in benefits that may be introduced in the event of early retirement would be in breach of Articles 17 and 18 of the Convention. The Committee takes note of this information. Since there has been no change in the situation, the Committee can but reiterate the hope that the Government's next report will contain information, in accordance with the provisions of Article 42, paragraph 2, of the Convention, on progress made towards lowering the age of retirement for certain categories of workers engaged in arduous or unhealthy work. It also reiterates the hope that any reductions of benefits in the event of early retirement will not affect the application of Articles 17 and 18 of the Convention in respect of this category of workers.

4. Part V (Standards to be complied with by periodical payments) in conjunction with Part III (Old-age benefit). The Committee notes the information provided by the Government in reply to its previous comments on old-age benefit rates. It notes in particular the statistical information which also takes into account the benefits granted under the Federal Occupational Insurance Act (LPP). Furthermore, the Committee notes with interest the Government's statement that measures have been taken which, for part of the population, will improve the relationship between incomes and benefits, such as the new benefit formula to take effect from 1 January 1993. The Committee would be grateful if in its future reports the Government would continue to provide information, including statistics, on any developments in this respect and on the result of the studies which, according to the Government, are to achieve fully the objective laid down in article 34 quater of the Federal Constitution.

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

Direct Request (CEACR) - adopted 1989, published 76th ILC session (1989)

1. Part II (Invalidity benefit), Article 12, of the Convention (in conjunction with Article 32, paragraph 1(e)). In its previous comments, the Committee raised the question of the compatibility with the Convention of section 7 of the 1959 Federal Invalidity Insurance Act (LAI), under which cash benefits may be temporarily or permanently refused, reduced or withheld where the invalidity has been caused or aggravated by the serious misconduct of the insured person or his dependants. Since the above-mentioned provisions of the Convention authorise the suspension of benefits only in the event of wilful misconduct of the person concerned, the Committee requested the Government to provide information on the practical effect given to section 7 of the 1959 Federal Act, showing that the refusal, reduction or withdrawal of benefits is only authorised when the serious misconduct is wilful and, if this were not the case, to make the necessary amendments to the national legislation to ensure that full effect is given formally to the Convention on this point.

In its last report, in addition to enclosing an article on reductions in benefits where invalidity is caused by the misconduct of the insured person, published in 1988 in the "Revue des caisses de compensation" (the wilful nature of the misconduct of the persons concerned is not clear in the article), the Government refers to statements made by two parliamentarians requesting the Federal Council to examine the possibility of amending section 7 mentioned above, in order to bring it into line with the international provisions to which Switzerland has subscribed. The Government adds that the Federal Council has referred the matter to a Committee of the Council of States, which is currently studying the general part of Swiss social insurance law, and points out that Committee in question has not made any proposals in this respect.

The Committee of Experts had already become acquainted with this information at its 1988 session during its examination of Switzerland's application of the European Code of Social Security. It therefore notes that there have been no developments since that date and can only raise the question again in the hope that it will be possible for the necessary measures to be taken to ensure that the Convention is fully applied with regard to the point in question.

2. Part VII (Miscellaneous provisions), Article 42 (in conjunction with Article 15, paragraph 3). In reply to the Committee's previous comments concerning the lowering the age of retirement (currently 65 years for men) for persons who have been engaged in arduous or unhealthy work - in accordance with the Convention - the Government indicates in its report that the Federal Council, as part of the tenth revision of old-age insurance (AVS), plans to make it possible for men to obtain advance old-age pension as of 62 years of age. It adds that such a pension - which is to affect all men and not a given category - will nevertheless be accompanied by a reduction in the amount of benefits of 6.8 per cent per year of advance, and that the Federal Council's proposal to lower the age of retirement will only become effective when it has received the approval of Parliament.

The Committee takes note of this information and, while it considers that the Federal Council's proposal is an interesting development towards greater flexibility in the minimum age for pensions, it hopes that the reductions in the level of benefits in this case (which may amount to 20.4 per cent in the event of an advance of three years) will not affect the application of Articles 17 and 18 of the Convention. The Committee also hopes that the Government will not fail to supply full information on this matter (including statistical data) as soon as the Federal Council's proposal becomes effective.

3. Part V (Standards to be complied with by periodical payments) in conjunction with Part III (Old-age benefit). The Committee notes from the information supplied by the Government in its report that, in 1987, the old-age benefit rate for a standard beneficiary (a man with a wife of pensionable age) after 30 years of contribution attained 39.8 per cent of the wage of a skilled male manual worker, whereas in 1985 this rate was 44.8 per cent which was considered to correspond to the rate fixed by the Convention (45 per cent), account being taken, in particular, of the flexibility allowed under paragraphs 1(b) and 2(b) of Article 18 of this instrument. However, since over the past few years the amount of old-age benefits seems to have deteriorated gradually - despite the revalorisations referred to in the report - the Committee hopes that the Government will make every effort to increase the amount of these benefits so that the percentage fixed by the Convention may be attained after a period of contribution (or residence) not exceeding the period laid down by the Convention. (In this connection, the Committee points out that the Government can: (a) either, in calculating old-age pensions, also take into consideration the benefits granted under the Occupational Insurance Act (LPP), in this case establishing the scope of the old-age insurance on the basis of paragraph 1(a) of Article 16 of the Convention; (b) or, to estabish statistical data on old-age pensions on the basis not of Article 26 but of Articles 27 or 28 of the Convention, also taking account, in this case, of the scope of the insurance.)