Demande directe (CEACR) - adoptée 2003, publiée 92ème session CIT (2004)

The Committee notes the information contained in the Government’s report, and particularly the reduction in the maximum period covered by compensation in the event of insolvency to the last four months of the employment relationship, instead of the last six months as previously envisaged.

Article 6(b). The Committee notes the Government’s reply to its previous comment in which it indicated that the issue of the holiday pay due in respect of the work performed during the year in which the insolvency occurred and for the previous year only arises in Swiss law where it is not possible, due to the termination of employment relationships, for the workers to benefit from their entitlement to holidays remunerated in kind. The Government indicates that in such a case the entitlement to the holiday may be replaced by a compensatory benefit included in the privileged claims within the meaning of section 219(4)(a) of the Federal Act respecting debt recovery and bankruptcy (LP) and must be placed in the first category. The Government also refers to the case law of the Swiss Federal Tribunal according to which a worker who has not used her or his entitlement to leave during the year following that in which it should have been taken is deemed, according to the rules of good faith, to have renounced the entitlement. Noting that the judgement referred to by the Government in its report does not relate to a case of the insolvency of an employer, the Committee requests the Government to provide with its next report additional information on any cases in which Swiss courts have explicitly considered compensatory benefits as a replacement of holidays due in respect of the work performed during the year in which the insolvency or the termination of the employment relationship occurred or in the previous year as privileged claims within the meaning of section 219(4)(a) of the above Act (LP).

Article 6(d). The Committee notes the Government’s reply to its previous comments to the effect that all workers’ claims resulting from the employment contract, including termination allowances, form part of the claims that have to be placed in the first category under section 219(4)(a) of the Act (LP), provided that they arose during the six months preceding the commencement of the bankruptcy.

Article 12(b), (c) and (d). With reference to its previous comment, the Committee notes that the Government refers in its report to case law establishing that all the amounts received by employees, where their payment is economically derived from the contract of employment, should be considered as forming part of the determining wage within the meaning of section 5(2) of the Federal Act on old-age and survivors’ insurance (LAVS). The Committee notes that this case law also deemed to be income from a salaried activity, subject to contributions, not only the compensation paid for the work performed, but in theory any benefit or allowance bearing any relation whatsoever with the service relationship, in so far as such benefits are not exempt from contributions under the terms of explicitly formulated legal prescriptions. The Committee infers from the above that termination allowances form part of the "determining wage", at least in the context of old-age and survivors’ insurance. Nevertheless, noting that the case law referred to by the Government is not related to a case of the insolvency of the enterprise, and in view of the specificity of law respecting insolvency, the Committee would be grateful to be provided with copies of the judicial decisions which, where appropriate, have affirmed the status of termination allowances as an integral part of "wage claims" within the meaning of section 52 of the Federal Act on compulsory unemployment insurance and compensation in the event of insolvency (LACI).

Furthermore, the Committee would be grateful if the Government would provide a copy of any regulation or administrative text (such as instructions, circulars, etc.) relating to the operation of unemployment funds which addresses the issue of the scope of compensation in the event of insolvency and which defines the various types of benefits classified as claims for the purposes of the payment of this compensation.

Part IV of the report form. The Committee notes that there has been an increase in the number of bankruptcies in recent years, particularly of large enterprises. It also notes that in a number of cases of enterprise restructuring, the payment of wage arrears and termination allowances has not been required of the purchaser, either because re-employed workers agreed to renounce them, or because the action taken in this regard by unemployment insurance institutions failed. The Committee requests the Government in its next report to provide detailed information, including statistics, on the number of recent instances of insolvency and assessing the operation of institutions which guarantee the payment of wage arrears and other termination allowances (such as the number of applications received per year, the total amount of compensation paid, the recuperation rate of the amounts advanced by unemployment funds, etc.).