Observation (CEACR) - adoptée 2014, publiée 104ème session CIT (2015)

Convention (n° 111) concernant la discrimination (emploi et profession), 1958 - Suisse (Ratification: 1961)

Autre commentaire sur C111

Observation

Demande directe

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Articles 1 and 2 of the Convention. Effective protection of workers against discrimination. Legislative and other measures. For several years, the Committee has been drawing the Government’s attention to the fact that the legal measures in force are inadequate to ensure the effective protection of workers against discrimination on all of the grounds enumerated in Article 1(1)(a) of the Convention (race, colour, sex, religion, political opinion, national extraction and social origin) at all stages of employment, including vocational training, recruitment and terms and conditions of employment, and to enable them to assert their rights in this respect. The Committee notes the Government’s indications that the situation remains unchanged, as Parliament has not given effect to the interventions proposing the strengthening of protection against discrimination in the field of private law, including labour. With regard more particularly to racial discrimination, the Government recognizes that, in so far as the constitutional provisions are not directly applicable to relations between individuals and that penal provisions (section 261bis of the Penal Code) are not often applicable in the field of employment, victims have to avail themselves of the general provisions of the Civil Code or the Code of Obligations, including general principles such as good faith or the invalidation of the contract. In this regard, the Committee recalls the conclusions of the study published in 2010 on law against racial discrimination, which was undertaken by the Federal Commission against Racism (CFR), according to which the absence of an explicit prohibition of racial discrimination is the cause of considerable legal uncertainty, particularly with regard to indirect discrimination. The Committee notes that, in its concluding observations, the United Nations Committee on the Elimination of Racial Discrimination (CERD) recommends Switzerland to adopt a clear and comprehensive definition of racial discrimination and to prohibit it in all areas of private and public life (CERD/C/CHE/CO/7-9, 13 March 2014, paragraph 6). Furthermore, in its 2014 report, the European Commission against Racism and Intolerance (ECRI) also emphasizes the deficiencies in the protection afforded against discrimination between individuals and once again recommends the reinforcement of the civil and administrative law provisions on the protection of victims of racial discrimination in all key fields of life (CRI(2014)39, 19 June 2014, paragraphs 7–12). The Committee also notes the information provided by the Government on the practical measures taken to combat discrimination and to promote integration, such as the establishment of dialogue on integration in work with, among other parties, workers’ and employers’ organizations, the measures adopted within the framework of the Global Strategy to Combat Poverty, the publication of brochures and the preparation of studies. In this respect, the Government indicates that the Swiss Centre of Expertise in Human Rights (SCHR) is to conduct a study to assess the mechanisms for access to justice by victims of acts of discrimination, on whatever grounds and in all areas of law, and that the Federal Council is currently preparing a report on the effectiveness of the legal instruments in force and on measures against discrimination. The Committee requests the Government to take the necessary measures to establish an effective legal framework against any form of discrimination based, as a minimum, on all of the grounds enumerated in Article 1(1)(a) of the Convention, at all stages of employment and occupation, with a view to providing effective protection to workers and enabling them to obtain compensation. The Committee requests the Government to continue adopting specific measures to prevent and combat discrimination in employment and occupation and to provide information on this subject. The Committee also requests the Government to provide information on the following points:

(i) any cases of discrimination detected by labour inspectors or brought to their knowledge;
(ii) any cases of discrimination in employment examined by the courts, with an indication of the respective ground of discrimination, the respective legal provisions and the outcome; and
(iii) the conclusions of the studies conducted by the SCHR on access to justice and by the Federal Council on the applicable legal instruments, and any measures taken as a result in the fields of employment and occupation.

Vocational training and guidance. The Committee notes the Government’s indication that a federal Bill on further training, the objectives of which include “the improvement of equality of opportunity”, is currently before Parliament for examination. The Bill provides that “in the further training courses that they regulate or support, the Confederation and the Cantons shall endeavour to achieve the effective equality between men and women; take into account the particular needs of persons with disabilities; facilitate the integration of foreigners; and improve the opportunities of low-skilled persons in the labour market”. It also notes the information provided by the Government on the federal programme “Equality of opportunities for women and men in higher specialized schools” and observes that, according to the study published in June 2013 by the National Statistics Office “Towards equality between women and men (situation and trends)”, the choice of occupation and the subjects studied are closely related to gender, with women choosing much more frequently than men to undertake studies in the fields of health, human and social sciences, and education. The Committee requests the Government to provide information on the progress made in the adoption of the Bill on further training, and to indicate the vocational guidance measures taken or envisaged to encourage young women to enter training in traditionally male fields, and the measures intended to give effect to equality of opportunities within the framework of the future Act on further training.

The Committee is raising other matters in a request addressed directly to the Government.