Observation (CEACR) - adopted 1994, published 81st ILC session (1994)

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

The Committee notes the information supplied by the Government in its report. It also notes the discussions at the Conference Committee in 1993 in the context of Convention No. 128.

Part VI (Employment injury benefit)

1. Article 38 of the Convention (in relation to Article 69(f)). In its previous comments the Committee raised the question of the compatibility with the above-mentioned provisions of the Convention of section 37(2) and section 38(2) of the Federal Accident Insurance Act of 20 March 1981 (LAA), which allows the cash benefits due to victims of occupational accidents or their survivors (in the case of the latter, the benefits may even be refused) to be reduced in the event of serious negligence on the part of the persons concerned. As the Committee pointed out in its previous comments, Article 69(f) of the Convention allows suspension of benefits only when the contingency has been caused by wilful misconduct on the part of the person concerned. It therefore asked the Government to provide information on any developments concerning the Federal Bill on the general part of social insurance law which, according to the Government, was to take full account of the above-mentioned provisions of the Convention.

After stating in its report that it still had no knowledge of any case law concerning the reduction of employment injury benefits for serious negligence, the Government goes on to indicate that the parliamentary debate on the above Bill has been suspended. It emphasizes that the Bill was initiated in Parliament since it was formulated by the Committee of the States Council. The Bill has already been approved by the States Council. The National Council has asked for further time to examine the matter. The question at issue is whether it would not be more appropriate, at a time when numerous specific laws on social security are being revised, to draft a law to harmonize them which would be less complicated than the current Bill concerning the general part of social insurance. The Government adds that, in any event, the issue is now in the hands of Parliament and there is no question but that the LAA will be brought into conformity with the Convention by one type of law or another.

The Committee takes note of this information. It hopes that the parliamentary debates on the issue will be pursued and will lead in the near future to the adoption of a text which takes full account of the above-mentioned provisions of the Convention.

2. Article 34, paragraphs 1 and 2. In its previous comments the Committee referred to section 10(3) of the above-mentioned Federal Accident Insurance Act (providing that the Federal Council may set the requirements for entitlement to home care, and the extent to which such care is covered by insurance), and section 18 of the Ordinance of 20 December 1982 (providing that the insurance covers only a part of the costs arising out of home care, prescribed by a physician and provided by an authorized person). It therefore asked the Government to take the necessary steps to provide expressly in the legislation that victims of occupational accidents shall not participate in the costs of nursing care at home, in accordance with the Convention. Since in its report the Government confirms that the insurers cover all costs arising from such care and that the tariff agreement with nursing personnel which was to fix the contribution of insured persons to home care costs will not be concluded in the immediate future, the Committee can but reiterate the hope that the necessary measures will be taken to ensure that Swiss practice in this respect is given statutory effect.