Demande directe (CEACR) - adoptée 2008, publiée 98ème session CIT (2009)

Article 6(b) of the Convention. Claims for holiday pay. Further to its previous comments on this point, the Committee notes with satisfaction that, owing to changes in case law, the national legislation, as interpreted by the Swiss Federal Tribunal, is now in full conformity with the Convention with regard to the protection by a privilege of workers’ claims in respect of paid holidays. Specifically, the Federal Tribunal ruled that the holiday entitlement for the respective year of service is no longer deemed expired if it is not exercised by the end of the following year but is now subject to the ordinary limitation of five years, which allows the employee to claim the holiday entitlement due to him for a period up to five years before the commencement of the bankruptcy and otherwise to submit a claim for financial compensation. Moreover, the Federal Tribunal ruled in another case that cash claims in respect of holidays which have not been taken arise where the latter can no longer be remunerated in kind; consequently, the cash claims arise at the commencement of the bankruptcy, and must therefore be placed entirely in the first category.

Articles 6(a) and (d). Wage claims covered by a privilege. The Committee notes with interest that, following the amendment of section 219(4)(a) of the Federal Act of 11 April 1889 concerning debt recovery and bankruptcy (LP), the privilege now covers not only wage claims arising in the six months preceding the bankruptcy but also those which have become enforceable within this period, such as the 13th month’s wage.

Article 12(d). Claims protected by a guarantee institution – Severance pay. The Committee notes that, in a previous report, the Government indicated that wage claims covered by compensation in the event of the employer’s insolvency, pursuant to section 52(1) of the Federal Act on unemployment insurance (LACI), correspond to the “determining wage” defined by section 5(2) of the Federal Act on old-age and survivors’ insurance (LAVS). It also notes, from reading the memo published by the AVS-AI on contributions to the AVS, AI and APG (p.7), that the determining wage includes benefits paid by the employer at the time of termination of employment, with the exception of contributions to family allowance funds. However, it notes that the pamphlet on compensation in the event of insolvency published by the Federal Department of Economic Affairs, which the Government attached to its report, states (p. 8) that claims for compensation, including those arising from immediate termination of the employment contract, are not covered by this compensation. The Committee requests the Government to supply further details of the types of severance pay actually covered by section 52(1) of the LACI. In this regard, the Government may wish to take account of the provisions of Paragraph 9 of the Protection of Workers’ Claims (Employer’s Insolvency) Recommendation, 1992 (No. 180), which state that claims protected by a guarantee institution should include not only “payments due in lieu of notice of termination of employment” (clause (e)), but also “severance pay, compensation for unfair dismissal and other payments due to workers upon termination of their employment” (clause (f)).

Parts III and IV of the report form. The Committee notes with interest that the amount of compensation paid by unemployment funds in cases of insolvency and the number of enterprises concerned decreased considerably between 2004 and 2006, while the recovery rate in relation to amounts advanced by these unemployment funds increased sharply during the same period, from 43 to 87 per cent. The Committee requests the Government to continue providing information on the practical application of the Convention, particularly on any changes in the case law of the Federal Tribunal in this area, and also on any agreements concluded relating to the takeover of enterprises in difficulty under the terms of which the buyer is released from the obligation to pay the wage arrears of the enterprise which has been taken over.