Texts of pending comments

Articles 1 and 2 of the Convention. Gender wage gaps and their causes. The Committee notes the Government’s indication in its report that, according to the Federal Office for Statistics, gender wage gaps have progressively lessened in the private sector: from an average of 21.3 per cent in 2012 to 19.5 per cent in 2014, they went to 19.6 per cent in 2016 and remained unchanged in 2018 (arithmetic average). However, across the entire public sector (Confederation, cantons and communes), the gender wage gap has widened: it amounted to an average of 18.1 per cent in 2018 while it was only at 16.7 per cent in 2016. It also notes that, according to the study of the explanatory variable component and the unexplained differential component in wage differentials, based on the Oaxaca model, the unexplained component (that is the component that is not based on objective factors, such as personal history – age, training, years of service, the nature of the post occupied in the enterprise or field of work) of gender wage gaps in the private sector rose to 44.3 per cent in 2018, while it was only at 42.9 per cent in 2016 and 39.1 per cent in 2014. Across the public sector it progressed to 37.2 per cent in 2018, while it was only at 34.8 per cent in 2016, but had been at 41.7 per cent in 2014. With regard to combating stereotypes, the Committee welcomes the Equality Strategy 2030, adopted on 28 April 2021 by the Federal Council (2021-2023), which includes among its objectives the elimination of the unconscious stereotypes and prejudices that determine the roles of women and men in the family and in society, in particular by providing information, awareness and training in all areas, especially institutional, to help prevent discrimination, sexism and gender stereotypes by establishing the pertinent facts in all areas and conducting monitoring activities. In this regard, it notes that the Equality Strategy 2030 is also aimed at achieving a better work/life balance. Noting once again that the gender wage gap remains significant in the country and is only changing very slowly and that the unexplained variable component has increased in both the private and public sectors, the Committee requests the Government to provide information, including statistics, on the implementation of measures under the Equality Strategy 2030 to combat the causes of the wage gaps, including gender stereotyping leading to gender-based occupational segregation, and on the difficulties encountered, principally by women, in reconciling professional and family responsibilities. It also requests the Government to: (i) continue to evaluate the differential, including the unexplained differential component; (ii) examine the reasons why the unexplained differential component continues to rise to be able to formulate appropriate measures; and (iii) provide information on developments in the wage gaps.

Measures aimed at promoting equal wages for men and women for work of equal value. Development in legislation. The Committee notes the detailed information provided by the Government with its report. It notes with interest the revision of the Federal Gender Equality Act (LEg), which now requires employers to carry out wage equality analyses (section 13(a) to 13(i) LEg). With the entry into force of this amendment on 1 July 2020, employers in the public and private sector with a staff of 100 or more workers must conduct regular analyses of wage equality, which are to be verified by a third party. The results of the analyses must be communicated to the staff and, in the public sector, published. The Committee also notes that employers are exempted from further wage analyses if, following the analysis, they show that they respect wage equality; and that on 21 August 2019 the Federal Council adopted the Ordinance concerning verification of the wage equality analysis regulating, inter alia, the training of persons responsible for reviewing the wage equality analysis and modalities for verification of the analysis in respect of Confederation staff. The Committee also notes with interest that: (1) the Equality Strategy 2030 includes among its objectives the elimination of wage discrimination in the public and private sectors; and (2) according to a revision of the Public Procurement Act (LMP) and of the Public Procurement Ordinance that came into force on 1 January 2021, public contracts for services in Switzerland are only awarded to tenderers that respect “gender equality in wages”; this requirement can be verified by the adjudicator or a third party delegated to that end and, the tenderer must provide the necessary evidence, on request. The Committee notes the Government’s indication that the Confederation places, free of charge, a standard online analysis tool, a modernized version of the Logib tool, at the employers’ disposal for the wage equality analysis, with a module especially developed for small enterprises (2-49 workers). Finally, the Committee notes the Government’s indication that the Charter for equal public sector wages, launched in 2016, was signed by the Confederation, 16 cantons and 113 communes, and 62 organizations close to the public sector, and that the results of the monitoring of wage equality in the public sector from 2016 to 2019 show that the Government’s commitment to wage equality has made itself felt in all regions of Switzerland and has been strengthened. Welcoming the continued efforts and the progress achieved in respect of policy and legislation to promote equal wages in the public and private sectors, in particular the development of procedures to analyse and monitor remuneration, the Committee requests the Government to continue to provide information on the measures taken in practice to promote equal remuneration in respect of workers, employers and their organizations, managers of the staff of the administration and public service, especially within the framework of the Equality Strategy 2030, and on the results obtained in reducing wage gaps. The Committee requests the Government to continue providing information on measures taken with regard to public procurement.

Article 4. Collaboration with employers’ and workers’ organizations. The Committee requests the Government to indicate measures taken or envisaged with a view to collaborating with employers’ and workers’ organizations in respect of wage equality and on initiatives carried out in this connection.

Articles 1 and 2 of the Convention. Effective protection of workers against discrimination in employment and occupation. Legislation, national policy and other measures. For many 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, at all stages of employment, including occupational training, recruitment and terms and conditions of employment, and to enable them to assert their rights in this respect. With regard to discrimination based on sex, the Committee recalls that the Federal Act of 24 March 1995 on equality between women and men explicitly prohibits “discrimination against workers on grounds of sex, either directly or indirectly, in particular on the basis of their civil status, their family situation or, in the case of women, of pregnancy” (section 3(1)). In this regard, the Committee notes with interest that the Government refers in its report to the adoption on 28 April 2021 of the Equality Strategy 2030, a national gender equality strategy which focuses on combating discrimination, promoting equality at work, improving the work/life balance and prevention of violence.

Regarding racial discrimination, the Committee recalls that in its previous report the Government recognized that, in so far as the constitutional provisions are not directly applicable to relations between individuals and that the penal provision (section 261bis of the Penal Code) is not often applicable in the field of employment, victims have to avail themselves of the general provisions of the Civil Code or of the Code of Obligations, including general principles such as good faith or the invalidation of the contract. The Committee recalls that the provisions of the Convention, even where prevailing over national law, may not be sufficient in themselves to provide effective legal protection from discrimination to individual workers and that, where legal provisions are adopted to give effect to the principle of the Convention, they should include at least all the grounds of discrimination specified in Article 1(1)(a) of the Convention (General Survey on the fundamental Conventions, 2012, paragraphs 851 and 853).

In order to ensure the effective protection of workers against discrimination in employment and occupation and to enable them to assert their rights, the Committee requests the Government to take the measures necessary to establish, in addition to the Federal Act of 1995 on equality between women and men, an effective legal framework adapted to the world of work that: (i) includes a definition and a prohibition of direct and indirect discrimination; (ii) covers at least all the grounds other than sex enumerated in Article 1(1)(a) of the Convention, that is colour, race, religion, political opinion, national extraction and social origin; (iii) applies to all stages of employment and occupation, including recruitment. The Committee requests the Government to provide information on any other measure taken or envisaged to prevent and combat discrimination on these grounds in practice, as well as on any measure adopted under the Equality Strategy 2030 to combat gender discrimination in employment and occupation. It also requests the Government to provide information on the access to justice of victims of discrimination in these fields, on the legal basis used and the results obtained through the courts (penalties imposed and compensation granted).

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

Article 1(1)(a) of the Convention. Discrimination based on sex. Sexual harassment. The Committee notes the information provided by the Government in its report regarding jurisprudence in respect of sexual harassment – the third most common type of discrimination brought before the Federal Court – and particularly the broad interpretation of the concept of “workplace” made by the Federal Court in its decision No. 4A_544/2018 of 29 August 2019, in which the unwelcome behaviour detrimental to the dignity of a person at the workplace occurred while the person was incapacitated and at a distance. Moreover, the Committee welcomes: (1) the publication by the Swiss Conference of Equality Delegates (CSDE) in 2020 of an “all-inclusive” kit to prevent sexual harassment at work, with a view to helping enterprises and institutions implement their obligation to provide regular information on sexual harassment and to take appropriate measures to put a stop to it; and (2) the evaluation, with a view to identifying good practices, of a pilot course on preventing sexual harassment in the care sector. The Committee requests the Government to continue to provide information on all measures taken, in collaboration with the social partners, to prevent and address sexual harassment and on the good preventive practices identified in the care sector following the abovementioned evaluation. It also requests the Government to continue to provide information on jurisprudence at federal and cantonal level, including on penalties issued and compensation granted.

Discrimination based on sexual orientation. The Committee welcomes the entry into force on 1 July 2020 of provisions amending section 261bis of the Penal Code by criminalizing discrimination “against a person or group of person on the basis […] of their sexual orientation”. The Committee requests the Government to provide information on the application of section 261bis of the Penal Code in cases of discrimination in employment and occupation.

Article 2. Measures to promote equality between men and women in employment and occupation. The Committee recalls that in its previous comments it emphasized the slow progress in women’s employment. With reference to its observation concerning the adoption, on 28 April 2021, of the Equality Strategy 2030 (a national strategy for gender equality), the Committee notes the Government’s indication that the strategy is intended to promote equality at work, improve work–life balance, prevent violence and combat discrimination. The Government adds that a plan of action to implement the Strategy is to be adopted at the end of 2021 and that a first review will be concluded at the end of 2025. The Committee notes that the Equality Strategy 2030 includes among its objectives: the balanced distribution of the sexes in training, in all occupational groups, at all levels of responsibility as well as in decision-taking bodies; the increase in the proportion of women undertaking higher education, particularly in the fields of mathematics, computer science, natural science and technology; and the improvement of representation of the sexes in senior management posts and diversity in all fields. The Committee requests the Government to provide information on the implementation and results of the Equality Strategy 2030, including in respect of: (i) the plan of action and, in particular, the measures aimed at promoting equality at work, in the public and private sectors, and at removing obstacles to the participation of women in the labour market; and (ii) the projects mentioned by the Government that seek to ensure equal representation of women and men in occupations and branches in which one of the two sexes is clearly under-represented and which suffer from a shortage of qualified workers. The Committee also requests the Government to provide information on all measures taken to combat gender stereotypes in respect of women’s occupational aptitudes and aspirations and to allow women to enjoy a better work–life balance.

Workers with family responsibilities. Paternity leave. The Committee notes with interest the inclusion, in 2020, in the Act concerning benefits in case of loss of earnings, of provisions giving working fathers the right to paternity leave of two weeks, with entry into force at 1 January 2021. Noting that the Equality Strategy 2030 also aims to reinforce the instruments that contribute to improving the work–life balance, the Committee requests the Government to provide information, including statistical data, on initiatives and measures taken or envisaged to allow workers with family responsibilities to improve their work–life balance, and on the results obtained. It also requests the Government to provide the available statistical data on the number of fathers that have taken paternity leave since the entry into force of this measure.

Equality of opportunity and treatment of Roma. The Committee requests the Government to provide information on the measures taken to combat discrimination under the implementation of the Action Plan “Yenish, Manouche, Roma” adopted at the end of 2016, in particular on the measures to combat stereotypes and negative prejudices against these persons when they seek or hold employment.

General observation of 2018. With regard to the points raised above, and with reference to its observation, the Committee wishes to draw the Government’s attention to its general observation on discrimination based on race, colour and national extraction, adopted in 2018. In that observation, The Committee notes with concern that discriminatory attitudes and stereotypes based on the race, colour or national extraction of men and women workers continue to hinder their participation in education, vocational training programmes and access to a wider range of employment opportunities, resulting in persisting occupational segregation and lower remuneration received for work of equal value. The Committee thus considers that it is necessary to adopt a comprehensive and coordinated approach to tackling the obstacles and barriers faced by persons in employment and occupation because of their race, colour or national extraction, and to promote equality of opportunity and treatment for all. Such an approach should include the adoption of interlocking measures aimed at addressing gaps in education, training and skills, providing unbiased vocational guidance, recognizing and validating the qualifications obtained abroad, and valuing and recognizing traditional knowledge and skills that may be relevant both to accessing and advancing in employment and to engaging in an occupation. The Committee also recalls that, in order to be effective, these measures must include concrete steps, such as laws, policies, programmes, mechanisms and participatory processes, remedies designed to address prejudices and stereotypes and to promote mutual understanding and tolerance among all sections of the population.

The Committee draws the Government’s attention to its general observation of 2018 and requests it to provide information in reply to the questions raised in that observation.

Enforcement. Specialized body. The Committee notes the establishment in 2019, of the National Human Rights Institution (INDH) which replaces the Swiss Centre of Expertise in Human Rights (CSDH) created in 2011. It observes that this institution is not competent to deal with individual cases. The Committee requests the Government to provide information on the cases of discrimination in employment and occupation dealt with by the federal labour inspectorate and the courts, specifying the grounds for discrimination and the legal basis, as well as the outcome of the procedure (penalties, compensation, etc.). Recalling the limits of the legislative framework for protection against discrimination, and particularly of the enforcement machinery, the Committee requests the Government to envisage the possibility of establishing a specialized body competent to deal with complaints of discrimination in employment and occupation with a view to affording effective protection to workers against discrimination and enabling them to assert their rights. The Committee requests the Government to indicate the role in practice of the INDH in addressing discrimination in employment and profession.

The Committee notes the information provided by the Government, which answers the points raised in its previous direct request and has no further matters to raise in this regard.

Articles 1 and 2 of the Convention. Definitions and exclusions. The Committee requested the Government to provide information on the measures taken or envisaged to guarantee that domestic workers in private households enjoy all the forms of protection provided for in the Convention. It notes with interest that in the context of the review of the Act on undeclared work (LTN) in 2018, the term “Arbeitsplatz” in section 7(1)(a) of the German text of the Act was replaced by “Arbeitsort”, in order to indicate that the supervisory authorities may also carry out LTN inspections in private households. It further notes the information provided by the Government on: labour inspection activities and services; complaints mechanisms accessible by domestic workers; action taken against the exploitation of domestic workers; measures taken by the Swiss authorities to protect domestic workers (including “undocumented” domestic workers) from all forms of abuse, harassment and violence. In particular, the Committee notes Action No. 7 of the National Action Plan to Fight Human Trafficking 2017–2020, on raising awareness of labour inspection through the compilation and distribution of information materials, as well as the awareness campaigns conducted by the State Secretariat for Economic Affairs (SECO). Furthermore, the Committee notes the establishment of a website, information leaflets and advice centres for undocumented persons; and the launch of Careinfo (careinfo.ch), a digital platform created with support from the Equality Office of the City of Zurich, to provide information of use to migrant care workers, private households and care services agencies. The Government has also concluded international social security agreements with 50 States to ensure equal treatment for Swiss citizens and citizens of these States and pensions portability, as well as Operation Papyrus, a special initiative launched in Geneva whereby, under certain conditions, the situation of hundreds of irregular migrants, including domestic workers, can be regularized. With regard to the conditions of employment of domestic workers, the Government indicates that, pursuant to Federal Council decision of 27 November 2019, the validity period of the Ordinance on the standard employment contract for workers in the domestic economy (CTT économie domestique), which provides for mandatory minimum wages in accordance with section 360(a) of the Code of Obligations, was extended by a further three years. The extension entered into force on 1 January 2020 and is effective until 31 December 2022. The Government further indicates that minimum wages, adjusted in line with nominal wage trends for the years 2016 to 2018 in accordance with the proposal of the Tripartite Federal Commission, were increased by 1.6 per cent. With regard to the provision of assistance around the clock to elderly persons in private households, the Government indicates that in 2019, a survey was conducted and an initial assessment made concerning the adoption by the cantons of the standard employment contract on 24-hours-a-day care (CTT 24/24). The survey results indicated that the majority of cantons were in the process of adopting the CTT 24/24 and most planned for it to enter into force in 2019/2020. The Committee also notes that the SECO is requested to establish a further assessment for release in early 2022. With regard to the protection of domestic workers, the Government indicates that measures have been taken to ensure that domestic workers in private households are informed of the protections available to them, and that persons requiring assistance are aware of their obligations. In this regard, the Committee notes that in 2021, fact sheets for workers in the domestic economy on the subject of 24-hours-a-day care were published on the SECO website in the three official languages and eight other languages in order to ensure that domestic workers were able to familiarize themselves with their rights. The fact sheet calls on persons requiring assistance and their families to exercise due diligence and envisages the possibility of eventual criminal prosecutions for failure to meet their obligations, including the obligation to verify that private domestic staff placement agencies hold a valid permit. The Committee notes that the coordinating body of the Swiss employment vouchers scheme, which brings together six public utility organizations in French-speaking Switzerland, launched its first awareness-raising campaign in 2020 with a view to regularizing undeclared domestic workers and reminding employers of their legal obligations. Furthermore, the Committee notes the Government’s indications concerning the content and scope of application of the Ordinance on private domestic workers (ODPr). It also notes the statistics provided by the Government on the monitoring carried out in the context of the CTT économie domestique and on the complaints filed for failure to comply with the minimum wage rate in the domestic work sector, including in respect of the situation of private domestic workers of persons benefiting from privileges, immunities and facilities. With regard to fees charged by private employment agencies, the Committee notes the information provided by the Government, including with respect to the audits of private placement agencies conducted by the competent cantonal authorities in the meaning of section 32 of the Federal Act on employment service and service leasing (LSE, RS 823.11). Noting that the Government intends to improve the situation of domestic workers through the existing legal instruments and does not yet envisage introducing a specific law for this category of workers, the Committee requests the Government to continue to provide information on the measures taken or envisaged to ensure that domestic workers in private households enjoy all the forms of protection provided for in the Convention. It also requests the Government to keep the Office informed of any progress in extending the scope of application of the Labour Act (LTr) to domestic workers. It further requests the Government to provide detailed and updated information on the impact of the COVID-19 pandemic on the application of this Convention, including information on the measures adopted or envisaged to mitigate the impact of the pandemic on decent working and living conditions for domestic workers in Switzerland.

Article 3. Freedom of association and collective bargaining. The Committee requested the Government to provide further information on the nature and impact of the innovative solutions put in place by the authorities to address issues of the representativeness of workers in the domestic sector during negotiations for collective agreements. It also requested the Government to indicate the measures taken or envisaged to reinforce the capacity of workers’ and employers’ organizations, organizations representing domestic workers and domestic worker employers’ organizations to effectively promote the interests of their members with regard to the domestic work sector. The Government indicates that the work of the expert group which culminated in the CTT 24/24 for workers in the domestic economy involved representatives of the cantonal and national authorities, employers’ organizations and organizations operating in the sectors concerned (cleaning and care), as well as trade union representatives. It was thus possible, with the help of the social partners, to establish mandatory minimum wages and binding conditions of employment for domestic workers. However, the Committee notes the Government’s indication that the drafting of standard employment contracts with mandatory minimum wages under section 360(a) of the Code of Obligations aims to cover branches in which no collective labour agreement has been concluded. The Government indicates that, in such cases, the tripartite committees for accompanying measures linked to the free movement of persons may submit a request for the drafting of a standard employment contract in which the social partners are fully involved. The Committee requests the Government to continue to provide updated information on any measures taken or envisaged with a view to promoting the right of domestic workers to form and join organizations of their own choosing, as well as the right to bargain collectively, taking account of the particular characteristics of domestic work, and to keep the Office informed of any progress made in this respect, including with regard to the conclusion of collective agreements in the domestic work sector.

Articles 5, 6, 7, 8(3), 11, 15, 17 and 18. Effective protection against all forms of abuse, harassment and violence. Fair terms of employment, decent working conditions and decent living conditions. Information on terms and conditions of employment. Migrant domestic workers. Minimum wage. Fees charged by employment agencies. Complaint mechanisms. Labour inspection. Implementation of the provisions of the Convention. Application of the Convention in practice. The Committee notes the information provided by the Government in reply to its previous request concerning the application of the provisions of the aforementioned Articles.

Recalling that in September 2017 Spain ratified the Protocol of 2014 to the Forced Labour Convention, 1930, the Committee notes the information provided by the Government in its 2019 report on the measures taken to apply the Convention as supplemented by the Protocol.

Articles 1(1) and 2(1) of the Convention, and Article 1(2) of the Protocol of 2014. Systematic and coordinated action. Trafficking in persons. In its previous comments, the Committee noted the information provided by the Government on the implementation of the National Plan of Action against trafficking in human beings (2012–2014). The Committee also noted that the Coordination Unit against Trafficking in Persons and Smuggling of Migrants (SCOTT) was preparing a new national plan of action that was due to be adopted at the end of 2016 and it requested the Government to provide information on the implementation of the new national plan of action.

The Committee notes the information contained in the Government’s report, according to which the second National Plan of Action against trafficking in human beings (2017–2020) entered into force in January 2017. It was prepared by the competent federal and cantonal services, as well as civil society organizations. The National Plan of Action establishes priorities, determines the overall strategy to combat trafficking in persons and specifies the federal and cantonal services with the main responsibility for the implementation of the 28 measures that it contains. These measures are organized around the four strategic areas of prevention, criminal prosecution, the protection of victims and partnership.

The Committee also notes that, according to the information contained in the 2019 report of the Group of Experts on Action against Trafficking in Human Beings (GRETA) (paragraphs 18 et seq.), the SCOTT finished operating at the end of 2018. The Government planned to replace the SCOTT with a Platform against Trafficking in Persons and Smuggling of Migrants, which would not have decision-making powers. Moreover, the Executive Secretariat of the SCOTT was placed under the National Crime Prevention Division of the Federal Police Office (FEDPOL) and was renamed the Service to Combat Trafficking in Persons and Smuggling of Migrants (SETT). A working group was set up to draw up the rules of procedure for the operation of the new platform. In parallel, the working group requested that the takeover by FEDPOL of responsibility for all the activities of the SCOTT, as set out in section 13 of the Ordinance on measures to prevent offences related to trafficking in human beings, be formally approved by the Head of the Federal Department of Justice and Police. The Committee further notes that, according to the information available on the official website of FEDPOL, federal collaboration occurs through cantonal round-tables, which have already been established in 18 cantons. The Committee therefore requests the Government to provide information on: (i) the implementation of the National Plan of Action 2017-2020 and the preparation of a new plan following its expiry; (ii) institutional coordination at the federal level, including the establishment and activities of the SETT, and its rules of procedure; and (iii) the work of the cantonal round-tables and the activities of the competent authorities in the cantons where a round-table has not yet been established.

Article 25 of the Convention, and Article 1(3) of the Protocol . (i) Definition and criminalization of forced labour. Labour exploitation. The Committee noted previously that FEDPOL had mandated the Swiss Forum for Migration and Population Studies of the University of Neuchâtel to conduct a study on labour exploitation. The report, which was published on 6 April 2016, confirmed the existence of the exploitation of workers in such sectors as domestic work, hotels, restaurants, construction and agriculture.

The Committee notes that section 182 of the Penal Code criminalizes trafficking in persons, including for labour exploitation, which is punishable by a sentence of imprisonment or a fine. Moreover, section 264(a) of the Penal Code establishes crimes against humanity, including reduction to slavery, which is defined as “disposing of a person by exercising over that person a right of ownership, particularly in the context of trafficking in human beings, sexual exploitation or forced labour”. Crimes against humanity carry a sentence of imprisonment of at least five years. The Government indicates that criminal prosecutions for trafficking in human beings (section 182 of the Penal Code), in cases involving the exploitation of forced labour, sometimes result in convictions under other criminal provisions, such as fraud (section 146), usury (section 157), threats (section 180), constraint (section 181) or abduction (section 183). This occurs in particular when all the elements constituting trafficking in persons are not present or have not been proved.

The Committee notes the absence of a clear definition of “forced labour” and “labour exploitation” in Swiss legislation, and that labour exploitation is only criminalized in the context of trafficking in persons, despite the judicial practice of imposing penalties under other criminal provisions. The Committee requests the Government to indicate the measures adopted or envisaged to ensure that the legislation on action to combat forced labour is in conformity with the Convention, particularly in relation to labour exploitation that is not related to trafficking in persons. The Committee also requests the Government to continue providing information on the application of the criminal provisions under which penalties are imposed in cases of labour exploitation.

(ii) Imposition of penalties. The Committee noted previously that, under the terms of section 182 of the Penal Code respecting trafficking in humans, 46 and 58 violations were recorded in 2014 and 2015, respectively.

The Committee notes the Government’s indication that in 2016 six final judgments were issued under section 182 of the Penal Code (one suspended fine, one prison sentence that was not suspended, and four suspended prison sentences). In 2017 and 2018, two judgments became final each year (one suspended fine, one prison sentence that was not suspended, and two suspended prison sentences). The Committee also notes that the statistical data currently available on the application of section 182 of the Penal Code is not disaggregated by type of exploitation. The Government indicates that FEDPOL has launched the process of changing the recording and presentation of police crime statistics so as to be able to distinguish between the different forms of exploitation in cases of violations of section 182 of the Penal Code, and that it is planned to introduce the change from 2020. The Committee requests the Government to continue providing information on the application of the relevant provisions of the Penal Code, and particularly section 182, drawing a distinction between the various forms of exploitation.

(iii) Strengthening the capacities of the actors in the criminal prosecution system. The Committee notes the Government’s indication that, in 2017 and 2018, specialized training for the actors in the criminal prosecution system was organized and held in the Swiss Police Institute. Moreover, FEDPOL is currently finalizing the design of training and awareness-raising for all professional groups that may be confronted with trafficking. The objective is the provision of systematic training for the respective professional services and groups in Switzerland. The Government adds that, within the framework of the National Plan of Action, it intends to prepare a practical guide to facilitate the identification of situations of trafficking for labour exploitation, and that certain specific issues still have to be examined. The Committee requests the Government to provide information on the training on trafficking in persons available for actors in the criminal justice system and for professional services and groups which may be confronted with trafficking. It also requests it to provide information on the preparation of the practical guide to facilitate the identification of situations of trafficking for labour exploitation.

Article 2 of the Protocol. Prevention measures, clauses (e) and (f). Supporting due diligence in the public and private sectors. Action to address the root causes. The Committee notes the information provided by the Government on the National Plan of Action for the implementation of the United Nations Guiding Principles on Business and Human Rights (2016–2020). In the context of the implementation of this National Plan of Action, the Secretariat of State for the Economy (SECO) and the Federal Department of Foreign Affairs published in May 2019 a brochure intended for Swiss micro, small and medium-sized enterprises with a view to providing them with practical insight into the opportunities and challenges of responsible enterprise management and providing international and national guidance on the inclusion of human rights issues in enterprise management. The Committee requests the Government to indicate whether a new national plan of action for the implementation of the United Nations Guiding Principles on Business and Human Rights is planned following the expiry of the current Plan of Action in 2020.

Article 3 of the Protocol . (i) Identification of victims. The Committee notes the Government’s indication that measures have been taken to update the checklist for the identification of victims of trafficking in persons by adapting it to current issues relating to trafficking in persons. The checklist contains specific indicators related to sexual exploitation and labour exploitation. Moreover, a guide on the identification of victims for the use of the police is being prepared to ensure harmonization at the national level. FEDPOL has also mandated a university institute to assess the situation of trafficking in persons in all the cantons and to evaluate the action taken to combat this crime at the cantonal level. The Government emphasizes that action to combat trafficking is organized at the cantonal level, and that there are significant differences between cantonal policies on the identification of victims of trafficking. According to the information contained in the GRETA report, the number of persons identified as victims of trafficking by the police was 35 in 2014, 47 in 2015, 90 in 2016, 108 in 2017 and 64 in 2018 (paragraph 12). However, eight cantons still do not have roundtables to serve as a mechanism for the guidance of victims (paragraph 118). The Committee requests the Government to provide information on: (i) the preparation of the guide for the police on the identification of victims to ensure harmonization at the national level; (ii) the findings of the study commissioned by FEDPOL to analyse the situation of trafficking in persons in all the cantons and assess the action taken at the cantonal level to combat this crime; and (iii) statistical data on the victims of trafficking for the purposes of sexual exploitation and labour exploitation who have been identified.

(ii) Protection of victims. General system. The Committee notes that the legal basis for the provision of assistance to victims of violations, including victims of trafficking, is contained in the Federal Act on assistance to victims of violations (LAVI). Under section 2 of the LAVI, assistance to victims includes advice and immediate help, with longer-term assistance being provided by consultation centres, and the contribution to the cost of longer-term assistance provided by a third party. Section 9 provides that the cantons shall establish consultation centres providing services adapted to the needs of the various categories of victims. Moreover, in addition to immediate help, if necessary, assistance must be provided until the state of health of the victim is stable and the other consequences of the violation have disappeared or been resolved (section 13(2)). It must include medical, psychological, social, material and legal assistance and, where necessary, emergency accommodation (section 14(1)).

The Committee further notes that Action No. 18 of the National Plan of Action envisages the preparation of a reference document entitled “National Programme for the Protection of Victims”, with a view to promoting the uniform application of the legal tools that exist in the cantons. The Government adds that, within the framework of the National Plan of Action, the Government envisages the review of statistics on the assistance provided to victims of trafficking who have been provided with specialized assistance by the listed non-governmental organizations. GRETA also observes that the capacity of specialized shelters to accommodate victims of trafficking in Switzerland has increased over the reference period (paragraph 149). The Committee requests the Government to provide information on: (i) the number of victims received by shelters specializing in support for victims of trafficking, and the nature of the assistance provided to them; and (ii) the progress made in reviewing statistics on the assistance provided to victims of trafficking who have received specialized assistance from non-governmental organizations.

Period of recovery and reflection. The Committee notes that section 35(1) of the Ordinance of the Federal Council on the admission, residence and exercise of an income-generating activity (OASA) provides for a period of recovery and reflection of at least 30 days to allow victims of trafficking to recover and decide upon their cooperation with the authorities. According to the information contained in the GRETA report, in practice, the period of recovery and reflection is frequently granted for a period of at least 90 days, instead of the minimum period of 30 days envisaged by the law (section 179). However, under the terms of section 35(3) of the OASA, a period of recovery and reflection can be terminated earlier if the potential victim indicates that she or he does not wish to cooperate with the authorities (clause (a)), or if the person concerned has deliberately renewed contact with those presumed to have committed the offence (clause (b)). The Committee therefore requests the Government to provide information on the effect given in practice to these provisions under which the period of recovery and reflection can be brought to an end earlier, including the number of cases in which these provisions have been applied and the circumstances justifying their application.

Identification and protection of victims of trafficking among asylum-seekers. The Committee notes the Government’s indications that, under the responsibility of the Secretariat of State for Migration (SEM), a working group on asylum and trafficking established under Action No. 19 of the National Plan of Action has been given responsibility for preparing proposals to ensure that victims of trafficking are identified and that they receive assistance within the framework of the asylum procedures. The working group is called upon to examine the following issues: (i) regulation of the residence of victims; (ii) optimization of the current procedure for the identification of victims, assistance to victims, information to asylum-seekers and cooperation with stakeholders; and (iii) the support provided to victims of trafficking within the framework of the Dublin procedure. The working group has prepared general recommendations on the issues referred to above and is currently working on proposals for specific solutions with a view to their implementation. According to the information contained in the GRETA report, within the framework of the asylum procedure as revised in March 2019, victims of trafficking have a greater chance of being identified earlier as a result of the provision of free legal assistance from the beginning of the asylum procedure. The new procedure also offers an opportunity to establish new centralized processes and to train all the actors concerned, which could facilitate proactive early identification (paragraph 133). The statistics provided by the Secretariat of State for Migration indicate that 84 presumed victims of trafficking were identified among asylum-seekers in 2014, 32 in 2015, 73 in 2016 and 100 in 2017. In the context of the Dublin procedure, 19 presumed victims were identified in 2014, 17 in 2015, 34 in 2016 and 41 in 2017 (paragraph 128). The Committee requests the Government to continue providing information on the activities of the working group on asylum and trafficking under the responsibility of the Secretariat of State for Migration, and on the results achieved, to ensure that victims of trafficking are identified and receive assistance within the framework of the asylum procedure. The Committee also requests the Government to provide statistical data on the number of victims of trafficking identified during the asylum procedure.

Article 4 of the Protocol. Paragraph 1. Access to remedies and compensation. The Committee notes that the Code of Penal Procedure provides that persons who have suffered, by reason of a violation, direct physical, psychological or sexual harm may seek compensation from the perpetrators of the crime through the judicial system (sections 116, 122 et seq. (civil action)). Section 73 of the Penal Code determines the legal framework for the confiscation of the assets of those who have committed crimes with a view to the compensation of victims. It is also possible to confiscate assets that are not the product of criminal acts to cover the costs of judicial action, penalties, fines and compensation (sections 263(1)(b) and 268(1)(a) and (b) of the Code of Penal Procedure). However, the Committee notes that, in its 2019 report, GRETA indicates that it is difficult to prove material prejudice, for example by quantifying the precise amount of unpaid wages. The report also indicates that the compensation awarded to victims by the courts is generally too low and that its payment by perpetrators is not enforced (paragraph 198).

The Committee further notes that, under the terms of the relevant provisions of the LAVI, the victims of crime are entitled to compensation (section 2(d)) from the State for financial and moral damages if the perpetrator or another debtor does not pay compensation or pays insufficient compensation (section 4). Chapter 3 of the LAVI governs the right of victims to compensation and to moral damages from the canton and the method of calculation. The GRETA has been informed that compensation was paid by the State to 14 victims of trafficking in 2014, 29 in 2015, 23 in 2016 and 19 in 2017 (paragraph 204). The Committee requests the Government to provide information on: (i) the cases in which courts have upheld claims for compensation, specifying the amount awarded and the amount actually received by the victims; and (ii) cases in which victims have been awarded the right to compensation by the State under the terms of Chapter 3 of the LAVI.

Paragraph 2. Non-prosecution of victims for acts committed under constraint. The Committee notes the absence of specific provisions in Swiss law on the non-prosecution of victims. However, in accordance with section 19 of the Penal Code, a person who commits a criminal offence can only be convicted if that person had the capacity to determine or appreciate the unlawful nature of the act committed. Moreover, sections 52 to 55 of the Penal Code set out the conditions under which persons may be exempted from penalties or be subject to suspended criminal prosecution.

The Committee also notes that, according to the information contained in the GRETA report (paragraph 235), there are cases in which victims are fined or prosecuted for violations of the legislation on foreign nationals, labour legislation or the regulations on prostitution. This situation has a deterrent effect on victims of trafficking, who are less likely to report their cases to the authorities for fear of being prosecuted or expelled from Switzerland. The Committee also notes Actions Nos 16 (training of the criminal prosecution authorities on trafficking in human beings) and 17 (networking between public prosecutors) of the National Plan of Action 2017–2020 intended to improve the identification of victims of trafficking and prevent penalties being imposed on them under the legislation on foreign nationals. The Government indicates that, in 2017 and 2018, specialized training for actors in the criminal prosecution system included components on exemption from penalties for those who are forced to commit criminal acts due to their situation of exploitation. The Committee requests the Government to provide information on the measures adopted or envisaged to ensure that victims are not prosecuted for acts committed under constraint, including within the context of Actions Nos 16 and 17 of the National Plan of Action 2017-2020.

Article 5 of the Protocol. International cooperation. The Committee notes the Government’s indication that Switzerland has implemented programmes and projects to support the countries of origin of victims in their action to combat trafficking in persons, namely Bulgaria, Hungary and Romania, with a view to improving collaboration between the criminal prosecution authorities in relation to trafficking in persons and between the services responsible for the protection of victims. These projects came to an end in 2018. The Committee requests the Government to indicate whether it envisages continuing the projects with a view to supporting the countries of origin of victims, and to continue providing information on international cooperation programmes.

Article 6 of the Protocol. Consultation with organizations of employers and workers. The Committee notes that, according to the report entitled “Exploitation of labour in the context of the trafficking of human beings: Situation in Switzerland”, published in 2016 by the Swiss Forum and commissioned by FEDPOL, the labour authorities and the social partners are not sufficiently involved in and aware of the prevention and detection of trafficking for labour exploitation, including in situations in which they are in direct contact with the active population (page 77). GRETA also notes that trade unions are not represented at the Geneva roundtable (paragraph 282), and that the institutional changes relating to the SCOTT were implemented without in-depth consultation with stakeholders (paragraph 18). The Committee requests the Government to indicate the measures adopted or envisaged to ensure effective consultation with employers’ and workers’ organizations concerning the measures adopted to combat forced labour.

Article 2(b) of the Convention. Obligation to agree to serve as a guardian (curateur). In its previous comments, the Committee noted that the obligation for citizens to agree to serve as guardians (curateurs), as established in section 400 of the Civil Code, is contrary to the Convention and that the Canton of Vaud is the only one in which this provision is applied strictly. The Government indicates that, at the federal level, the preliminary draft of the Federal Council in response to Parliamentary initiative No. 12.413 to amend section 400 of the Civil Code has been submitted for consultation. Moreover, in July 2014, the government of Vaud decided to bring an end to compulsory guardianship orders. The Committee also noted previously that the Government was planning to introduce the recruitment of private and voluntary guardians in 2017 through the implementation of a communication campaign. The Committee therefore requested the Government to provide information on the introduction of the recruitment system for private and voluntary guardians since 2017, and the number of persons covered by guardians.

The Committee takes due note that, according to the information provided by the Government, section 400 of the Civil Code has been amended and provides that a person can only be nominated as a guardian with their agreement. In May 2017, the State Council of Vaud decided to bring an end to compulsory guardianships from 1 January 2018. As of 31 December 2018, a total of 529 guardians, all volunteers and trained, had been appointed by justices of the peace and were entrusted with mandates. Other candidates are awaiting nomination and have not yet completed the recruitment process.

Article 3(1)(a) and (b) of the Convention. Labour inspection activities in the area of working-time requirements. The Committee notes that, in reply to its previous request concerning labour inspection activities in the area of working-time, the Government indicates in its report that: (i) a study on the effectiveness of the priority action on psychosocial occupational risks led between 2014 and 2018 by the State Secretariat for Economic Affairs (SECO) and the Intercantonal Association for the Protection of Workers demonstrates that the engagement of cantonal labour inspectors, who were offered awareness-raising and training in this area, had a positive impact on the implementation of preventive measures, and reveals that employers are open to investing in such measures; (ii) the knowledge acquired in the context of this priority action continues to be applied during cantonal labour inspections; and (iii) the SECO continues to offer various training sessions in which cantonal labour inspectors are trained in working and rest time.

Article 3(2). Additional functions of labour inspectors. Functions entrusted to labour inspectors related to migration. Rights of foreign workers from their past work relationship. The Committee previously noted that, pursuant to the Act on undeclared work (LTN), the cantonal supervisory bodies responsible for the enforcement of the LTN verify whether employers and workers are complying with their notification and permit requirements in accordance with the legislation on foreign nationals, and collaborate, inter alia, with the labour inspectorate and the police. It also noted that, in certain cantons, no separate cantonal supervisory body had been established to supervise the application of the LTN, but that the cantonal labour inspectorates were responsible for the application of the LTN.The Committee therefore requested the Government to take measures to ensure that the functions assigned to labour inspectors do not interfere with their main objective to ensure the protection of workers. The Committee notes the Government’s indication in its report that in the area of labour inspection, two types of inspectors are deployed: (i) labour market inspectors, who monitor the lawful implementation of the Act on Posted Workers and the LTN; and (ii) cantonal labour inspectors, who are responsible for enforcing labour law in all enterprises (except federal enterprises) as well as the guidelines on prevention under the Act on accident insurance in service enterprises. The Government further states that: (i) enforcement of labour law, including by labour inspectors, is incumbent on the cantons; (ii) in the fight against undeclared work, the cantons have considerable leeway in the organization of their cantonal supervisory bodies; most cantons have set up the supervisory body within the cantonal labour market authority; and (iii) some cantons have delegated tasks specific to the enforcement of the LTN to joint committees or monitoring associations, which also carry out support measures for the free movement of persons and, in particular, monitor compliance with the minimum conditions for wages and work in the country. The Committee also notes Annex 2 to the 2019 report on the implementation of the LTN, containing a brief description of the configuration of the relevant cantonal bodies. Lastly, with regard to respect of the rights of foreign workers liable to expulsion or already expelled, the Committee notes the Government’s indication that the SECO is not aware of any actions by trade unions or judgments under section 15 of the LTN (concerning the representation of foreign workers after they have left the country). The Committee notes that, according to the information included in the report on the implementation of the LTN in 2019, concerning breaches of the obligations of notification and permit requirements in accordance with the legislation on foreign nationals, in addition to 962 employers, 820 workers were sanctioned by the authorities competent in matters relating to the legislation on foreign nationals. The Committee requests the Government to provide specific information on the number of cantons in which the application of the provisions concerning the obligations of notification and permit requirements in accordance with the LTN are enforced by the same inspection body responsible for supervising the implementation of the labour law. It also requests the Government to provide further information on the inspection activities in the cantons in question (cantonal legislation, including guidelines concerning the prerogatives of inspectors relating to the monitoring of undeclared work, and inspectors’ operational procedures). In this regard, the Committee requests the Government to take the necessary measures to ensure that, in these cantons, the supervisory functions assigned to labour inspectors do not interfere with their main objective to ensure the protection of workers in accordance with Article 3 of the Convention.

The Committee notes the information provided by the Government, which answers the points raised in its previous direct request and has no further matters to raise in this regard.

Comments adopted by the CEACR: Switzerland

Adopted by the CEACR in 2021

C100 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

C111 - Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

C111 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

C172 - Replies received to the issues raised in a direct request which do not give rise to further comments (CEACR) - adopted 2021, published 110th ILC session (2022)

C189 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

Adopted by the CEACR in 2020

C029 - Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

C081 - Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

Adopted by the CEACR in 2019

C026 - Replies received to the issues raised in a direct request which do not give rise to further comments (CEACR) - adopted 2019, published 109th ILC session (2021)

C173 - Replies received to the issues raised in a direct request which do not give rise to further comments (CEACR) - adopted 2019, published 109th ILC session (2021)