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

Social Security (Minimum Standards) Convention, 1952 (No. 102) - Switzerland (Ratification: 1977)

Part VI of the Convention (Employment injury benefit). Part VI of the Convention (Employment injury benefit). 1. Article 38 (in conjunction with Article 69 (f)). In its previous comments, the Committee raised the question of the compatibility with the Convention of section 37, subsection 2, and section 38, subsection 2 of the new Federal Accident Insurance Act (LAA of 20 March 1981) which provide for the reduction of the cash benefits due to employment injury victims or their survivors (in the case of the latter, such benefits may even be refused) where the contingency has been caused by gross negligence on the part of the person concerned. Since the above-mentioned provisions of the Convention prescribe that the benefits may only be suspended where the contingency has been caused by the wilful misconduct of the person concerned, the Committee requested the Government to provide information on the application of the above provisions of the Federal Act in practice, showing that, in the case of industrial accidents, the reduction or refusal of benefits is confined to cases where the "gross negligence" is wilful.

In reply to these comments, the Government transmitted with its report two judgements of the Federal Insurance Tribunal, concerning the reduction of benefits for "gross negligence" in road accident cases and states that it has been unable to provide information on the application, in practice, of section 37, subsection 2 and section 38, subsection 2 of the above-mentioned Act, in respect of occupational accidents. However, it indicates that the reduction of benefits under these sections is also applicable in the case of occupational accidents. Furthermore, it refers to the reply given by the Federal Council on 1 June 1987 to certain questions raised by two parliamentarians concerning the need to amend the above-mentioned provisions in order to bring them into line with Switzerland's international commitments. In its reply, with which the Committee became familiar at its 1988 Session when application of the European Code of Social Security by Switzerland was examined, the Federal Council stated that it wished to wait until the question of the reduction of benefits due to serious misconduct of the person concerned was examined in the context of the study on a "general part of Swiss social insurance law". According to the information on the European Code of Social Security, provided at the time by the Government, the matter was already being studied by a working group which was to make recommendations to the Council of States, in particular concerning these reductions, and information on the progress of its work would be transmitted to the Committee. Since the Government's last report on the Convention contains no information on any developments in this area, the Committee can only hope that the necessary measures will be taken to bring the national legislation into full conformity with the provisions of the Convention on this point.

2. Article 34, paragraphs 1 and 2. In its comments, the Committee also referred to section 10, subsection 3 of the above-mentioned Federal Accident Insurance Act (which provides that the Federal Council may establish the conditions under which the insured person is entitled to care at home, and the extent to which such care is covered by the insurance), and to section 18 of the Ordinance of 1982 issued under this Act (which provides that the insurance covers only a part of the expenses resulting from care at home prescribed by a medical practitioner and provided by an authorised person). It therefore requested the Government to indicate whether the above-mentioned provisions which appear to prescribe that the insured person shares in the cost of medical care, apply also to the victims of employment injuries, which would be contrary to the Convention which provides for free medical care in such cases. In reply, the Government states that the care in question is nursing care and that the contribution to fees for care at home is to be fixed by a fee agreement. It adds that no agreement of this kind has yet been concluded but that, in practice, the insurer pays the total cost of these fees and that, consequently, there is no contribution by the insured person. The Committee takes due note of this statement and hopes that a fee agreement may be concluded shortly to give formal recognition to this practice, particularly with respect to employment accident victims.

3. Article 32(d) (in connection also with Article 69(j)). The Committee requested the Government to provide examples of the application, in practice, of the provisions of section 29 of the Federal Accident Insurance Act which: (a) makes the right of the surviving spouse to a pension (where marriage was contracted after the date of the accident causing death) subject to the condition that the promise of marriage had been made public before the accident, or that the marriage had lasted at least two years at the time of the death of the insured person; and (b) authorises the refusal or reduction of benefits when the surviving spouse has seriously failed in his or her duties towards the children. In its last report, the Government states that to date, there have been no cases where the provisions of the above-mentioned section have been applied in practice, but that it will not fail to provide information on any developments that might occur in this respect. The Committee takes note of this statement and hopes that the Government will keep the Office of any such developments.