Observation (CEACR) - adoptée 2010, publiée 100ème session CIT (2011)

Convention (n° 98) sur le droit d'organisation et de négociation collective, 1949 - Suisse (Ratification: 1999)

The Committee takes note of the Government. It also notes the communications of September 2010 from the Union of Swiss Employers (UPS) and the Swiss Federation of Trade Unions (USS). Lastly, the Committee notes the communication of 24 August 2010 from the International Trade Union Confederation (ITUC). The Committee requests the Government to send observations thereon.

Articles 1 and 3 of the Convention. Protection against anti-union dismissals. In its previous comments the Committee noted the observations by the USS, endorsed by the ITUC, objecting, on the basis of cases ruled on by the courts, that protection against anti-union dismissals was not adequate. The Committee also noted the Government’s reply maintaining, on the contrary, that protection against anti-union acts, including recourse to the courts, is adequate. According to the Government, Swiss law offers adequate protection to trade union delegates and representatives, thereby fully complying with the Convention; the compensation for unfair dismissal which may amount to as much as six months’ pay is sufficiently dissuasive given that the great majority of Swiss firms are small and medium-sized enterprises. The Government added that parliament had been unwilling to incorporate in Swiss law on employment contracts the principle of reinstatement of the dismissed worker, which in any event is not required by the Convention; so there was no question of proposing an amendment to the law to introduce further protection against acts of anti-union discrimination as it would be doomed in advance to failure. Lastly, the Government stated that following the adoption in November 2004 of the interim conclusions of the Committee on Freedom of Association in Case No. 2265, the matter had been notified to the Tripartite Federal Committee for ILO Affairs, but in the absence of agreement, it was not deemed necessary to take measures to strengthen protection against unfair dismissal on anti-union grounds or make it more effective in practice. The Committee expressed the view that while the applicable compensation for unfair dismissal (up to six months’ wages) may be a deterrent for small and medium-sized enterprises, this is not so for high productivity and large enterprises. It accordingly asked the Government to resume tripartite dialogue in the light of its comments on the issue of adequate protection against anti-union dismissals.

The Committee notes that in its latest report, the Government again expresses serious concern that the Committee should apply to the Convention principles drawn from the interim conclusions of a case that is under examination by the Committee on Freedom of Association and is narrower in scope. The UPS endorses this position in its latest communication. The Committee furthermore notes the information sent by the Government that the Federal Council decided on 16 December 2009 to reconsider the matter of penalties for unfair dismissal, including the dismissal of elected staff representatives, dismissal for membership or non-membership of a trade union or for lawful trade union activity, but solely for the purpose of looking into an increase of the maximum penalty and not of replacing the principle of compensation with reinstatement of the worker. The Committee notes that according to the Government’s report, the first draft of a bill is to be debated in the autumn of 2010 with specific proposals for amendments to the law. The Committee notes that in its latest communication, dated 17 September 2010, the USS indicates that there are still anti-union practices and dismissals and that the legislation has no dissuasive effect at all on employers, and particularly large enterprises. The USS states that it has submitted many new cases of anti-union dismissals to the Government with a view to amendment of the legislation, but to no avail so far. However, while objecting that the Government has taken no action despite the ILO’s recommendations, the USS welcomes the Government’s initiative to hold consultations on improving protection against dismissal which were to start in September 2010. The Committee takes note of this information, welcomes the decision of the Federal Council and hopes that the consultations on improving protection against unfair dismissal, including dismissal on anti-union grounds, will take account of the comments it has been making for several years on the application of Article 1 of the Convention. It hopes that in its next report the Government will provide information on the outcome of the consultations and the measures taken.

Article 4. Promotion of collective bargaining. In its previous comments the Committee asked the Government to indicate how the law and case law address improper practices in collective bargaining (proven bad faith, unwarranted delay in the bargaining process, failure to comply with agreements, etc.), and to indicate any measures taken to promote the broadest possible development and use of machinery for the voluntary negotiation of collective agreements. In 2008 the Government referred to the case law concerning the obligation to engage in collective bargaining, indicating that precedent also establishes an obligation to negotiate in good faith. The Committee asked the Government to provide copies of the court rulings in question together with any other relevant rulings on improper practices in collective bargaining. The Committee notes that for the period covered by the report, the Government indicates that there have been no court rulings involving matters pertaining to the application of the convention. The Committee requests the Government to send a copy of the case law to which it referred in its 2008 report. It also asks the Government to send up to date statistical information on the number of collective agreements by sector and the number of workers covered.