Observation (CEACR) - adoptée 2008, publiée 98ème session CIT (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.