Observation (CEACR) - adoptée 2018, publiée 108ème session CIT (2019)

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

The Committee previously requested the Government to provide its comments in response to the September 2015 observations of the International Trade Union Confederation (ITUC) concerning anti-union dismissals in the press, publishing industry and health sector, and intimidation towards trade union members in the service-providing enterprises at Geneva airport. The Committee notes the Government’s reference to the replies it sent to the Committee on Freedom of Association concerning dismissals in a hospital in the canton of Neuchâtel. The Committee recalls that the protection afforded to workers and trade union officials against acts of anti-union discrimination constitutes an essential aspect of freedom of association and invites the Government to provide information on the status of the other cases raised in the ITUC communication. The Committee is of the opinion that such information contributes to the assessment of the overall effectiveness of the protection offered at national level against acts of anti-union discrimination.

Articles 1 and 3 of the Convention. Adequate protection against anti-union dismissals. In its previous comments, the Committee welcomed the continuing tripartite dialogue relating to an increase in penalty limits for anti-union dismissals. The Government had commissioned a study into the protection afforded to workers’ representatives, which was completed in January 2015 by the Study Centre for Industrial Relations of the University of Neuchâtel, which was the subject of discussion with the Tripartite Federal Committee for ILO Affairs in February 2015 in order to decide on the follow-up to the draft bill on the partial revision of the Code of Obligations.

In its last report, the Government indicates that a seminar was held on 8 May 2017, involving the Tripartite Federal Committee for ILO Affairs, federal administration, and representatives of trade union and employer movements, for a frank and open exchange on the complaints lodged against the Government with the ILO. According to the Government, the social partners held to their opposing positions. The employers’ representatives consider that the number of anti-union dismissals is contestable owing to the lack of specific data from the courts. They do not wish to amend the provisions on the contract of employment by increasing penalties for cases of unfair dismissal and refer to solutions at the branch level to improve protection through collective labour agreements, such as that which had been signed in the machinery sector. The workers’ representatives, however, are demanding that the solution of reintegration in the post be retained or, at a minimum, that the maximum total for compensation in cases of anti-union dismissal fixed by law at the equivalent of six months’ wages be increased to 12 months, as solutions through agreements are in their view insufficient. The Government adds that, in the spirit of the seminar’s conclusions, the State Secretariat for the Economy (SECO) and the Federal Office of Justice have initiated an assessment of the outcome of the seminar with the Swiss Federation of Trade Unions and the Union of Swiss Employers. The Government states that, in the social partners’ view, the two sides are irreconcilable. It nevertheless intends to continue its efforts to find a solution. The Committee emphasizes that “compensation envisaged for anti-union dismissal should fulfil certain conditions and in particular: (i) be higher than that prescribed for other kinds of dismissal, with a view to the effective dissuasion of this type of dismissal; and (ii) be adapted in accordance with the size of the enterprises concerned” (see General Survey of 2012 on the fundamental Conventions concerning rights at work, paragraph 185). The Committee hopes that open tripartite dialogue that the Government intends to maintain on the matter of adequate protection against anti-union dismissal will continue and enable a solution to be reached which gives full effect to Article 1 of the Convention. The Committee invites the Government to report on any new developments in this regard.

Article 4. Promotion of collective bargaining. The Committee notes the statistics available from the Federal Statistics Office on the collective agreements signed and the number of employees covered (from 1 March 2016, 38 legally binding national collective agreements covering 933,591 workers, as well as 38 extensive cantonal collective agreements covering 99,038 workers). The Committee requests the Government to continue providing up-to-date statistical information on the number of collective agreements by sector and the number of workers covered.