2007 Annual Survey of violations of trade union rights - Switzerland
|Publisher||International Trade Union Confederation|
|Publication Date||9 June 2007|
|Cite as||International Trade Union Confederation, 2007 Annual Survey of violations of trade union rights - Switzerland, 9 June 2007, available at: http://www.refworld.org/docid/4c52ca0b3c.html [accessed 10 October 2015]|
ILO Core Conventions Ratified: 29 – 87 – 98 – 100 – 105 – 111 – 138 – 182
Limitations on the right to strike remained, to the extent that strikes are banned in some cantons and many communes. A ruling by a federal court in December 2005 set a worrying precedent. While upholding the union's right to organise a picket, the court also held the union liable for costs incurred during the dispute, including the crippling costs of hiring private security guards. The Swiss government challenged an ILO ruling concerning the lack of protection for trade union representatives. There were several cases of violations during the year.
Trade union rights in law
Recognition of freedom of association and the right to strike: A clause in the Federal Constitution (Article 28), which came into force in January 2000, explicitly recognises the right of workers to form and join trade unions. It also recognises the legality of strikes, provided they are related to industrial relations and in line with "requirements to safeguard social peace or to seek conciliation". Strikes must only be carried out by organisations entitled to conclude collective bargaining agreements.
Protest action restricted: Article 357a of the Federal Code stipulates the requirement to preserve social peace in relation to all matters covered by a collective bargaining agreement (CBA). Almost two thirds of CBAs in Switzerland contain a binding clause on maintaining social peace and exclude, de facto, any recourse to protest, even on matters not covered by the CBA, during the period covered by the CBA.
The Swiss unions have pointed to the lack of compensatory mechanisms for civil servants still unable to take strike action, such as conciliation and arbitration procedures to resolve disputes.
Strikes banned in cantons and many communes: The semi-canton of Nidwald and the canton of Fribourg have introduced bans on the right to strike in the law applying to their staff. Certain communes in Fribourg have referred to these canton-level provisions in their own regulations. A few other cantons are adapting their legislation to comply with the Federal Constitution.
Inadequate protection against anti-union dismissals: Whilst Swiss legislation does not permit the dismissal of union representatives, unless the employer can prove that a dismissal was justified, the law does not provide for the reinstatement of people who were unfairly dismissed. At best, the judge may order the employer to pay compensation amounting to six months' salary to the victims of unfair dismissals. In November 2006, the ILO Governing Body unanimously endorsed a decision by the Committee on Freedom of Association calling on Switzerland to provide better protection to workers' representatives in companies. The Federal Council is requested to take measures to ensure that the victims of anti-union dismissals are at least afforded the same level of protection as those people dismissed in breach of gender equality principles, including the possibility of reinstatement within the offending company.
Trade union rights in practice
Representative trade unions sidelined: The lack of clearly defined rules on the representativeness of trade union organisations in Switzerland is leading employers to select as partners the most pliable workers' organisations on the "market", including some "ghost" associations, thereby destroying their relations with representative trade unions.
Anti-union dismissals: Though relatively scarce, anti-union dismissals are a growing trend in Switzerland, given the absence of any effective protection preventing unfair terminations of employment contracts. Since the courts cannot order the reinstatement of victims of such abuses, these practices are undermining, to some extent, the exercise of freedom of association.
Lack of genuine collective bargaining in agriculture: The agricultural sector is not covered by the Employment Law and industrial relations in the sector are not governed by a federal CBA. All the unions' attempts and strategies for improving the working conditions and legal protection of agricultural workers have so far failed. The Federal Council has taken no steps to encourage the sectoral employers' organisations to negotiate a decent collective agreement with the corresponding representative trade union organisations at national level.
Right to strike – case law: A Federal Court ruling in December 2005 addressed the legality of measures used by the union Comedia in a collective dispute. The union became involved in a dispute with the printing works Presses Centrales SA in Lausanne in spring 2001, following the company's withdrawal from the employers' association and subsequent termination of the collective agreement. Faced with the management's refusal to start negotiations on a new agreement, a strike picket was held in front of the printing works aimed at blocking the production of the paper 'L'AGEFI'. The police eventually forced open the entrance to let in the workers, who were then made to produce the paper. This led to a minor scuffle which entailed the smashing of one window and damage to one entrance door. According to the Federal Court, the action carried out by the union against the press was collective and akin to a strike. As a result the blocking of production was protected by the Constitutional guarantee on the right to strike.
However the Federal Court also ruled that the scuffle outside the entrance constituted a disproportionate use of violence against the company. The damages charged to the union were not just for reimbursement of the damage that was done, i.e. some 1,500 francs worth (one window, one door lock, one tyre), but also included the cost of the private security firm that had been hired by the company. The total costs could rise to over 50,000 Swiss francs (around 40,000 US dollars). The Federal Court's ruling is particularly shocking since it also makes the union liable for paying the expenses incurred for special surveillance that continued some months after the event.
Weaknesses in Swiss legislation: In September 2005, the First Civil Chamber of the Federal Court had rejected the main appeal by Comedia against Presses Centrales SA. The appeal centred on protection against external interference and protection of collective bargaining but was rejected on the grounds that although the relevant provisions of conventions 98 and 154 had been integrated correctly in Swiss law at the time of their ratification, they were not directly applicable. The judgement clearly displays the failure of Swiss legislation to apply these instruments.
Violations in 2006
Anti-union job advert: In April, a craftsman managed to get a job offer published in a free newspaper in the Bernese Jura, "La Région", asking for a "non-unionised" commercial painter (term underlined in the advert). Discrimination in recruitment is not punishable in Switzerland if it only applies to the job advert.
Anti-union dismissals: The Chair of the works council at Swissmetal SA in Reconvilier, Nicolas Wuillemin, was sacked with immediate effect during a strike in early February 2006, after working for the company for 17 years. Two other staff delegates at the company were subsequently dismissed, along with Nicolas Wuillemin's wife Maria, who was also a staff representative. In Geneva, Caran d'Ache sacked two trade union representatives, in order to remove the union Unia as a signatory of the collective agreement covering the administrative staff.
Refusal to negotiate with the union: Aldi, the huge German supermarket chain, which has recently set up in Switzerland, has been banning its employees from talking to the press or the unions about their working conditions. Unia's request to engage in collective bargaining with the management was turned down. The union has been unable to check the truth of the company's claim that it has made the basic changes to individual employment contracts that were needed to respect freedom of association.
Collective agreement with a ghost union: The management of the Del Maître delicatessen company submitted a new CBA to its employees in early September 2006. The company had signed the agreement with an association that was totally unknown in the canton of Geneva. The so-called butchers' association, "Association suisse du personnel de la boucherie" (ASFPB), has no members on the staff of Del Maître. The new agreement introduced a series of negative changes for the employees, including an increase in working time to 43 hours per week and the removal of paid breaks and compensation for holidays falling on a Saturday or Sunday. Del Maître aims to introduce flexible working time for its shop workers, ranging between 5am and 9pm.
Draconian pre-conditions for bargaining: Four employers' associations in the canton of Vaud from the quasi-public health sector wrote in September 2006 to the SUD trade union federation that they would only agree to renew negotiations on a CBA if the SSP, SUD, APEMS and SYNA unions agreed not to take any action linked to those negotiations, including distribution of tracts, until the negotiations were completed or eventually broke down. The four employers' associations insisted that the unions commit themselves to respect social peace and refrain, even, from supporting any proposals to set up union delegations at the workplace.
Arrest of a trade unionist: Following the distribution of some tracts, which irritated some of the employers involved in the abovementioned case, an official complaint was filed by the latter for "violation of privacy". A union secretary was arrested at his home on 9 November 2006. Police from Rolle drove him to the station for an interrogation. He was asked to provide documents disclosing the identity of the activists involved in the union action, which he refused to do.
Systematic prevention of trade union activities at Migros: Since 2001 Migros has formally banned Unia from entering its stores and discredited the union in internal messages to the staff. The cooperative food company has filed a series of legal cases against Unia union officials for circulating information brochures to its staff. Six courts have addressed complaints by Migros for "violation of privacy". All the complaints ended up being rejected and all the Unia officials were acquitted. Nevertheless, Migros is refusing to give up its intimidation policy aimed at repressing any trade union impulses. In November 2006 one Migros store in the centre of Neuchâtel prevented the circulation of leaflets within the shop, despite the fact that Migros imposes a contractual requirement on its suppliers to guarantee union access to their companies.
Government contests legitimacy of the ILO Committee on Freedom of Association: The Swiss government challenged the findings of the ILO Committee on Freedom of Association (CFA) in response to a complaint by USS concerning Convention 98 and the protection of union representatives. In a document sent to the CFA in June 2006, the government questioned the committee's legitimacy and maintained that Convention 98 was not applicable under the Swiss Constitution and Swiss law, despite the country's ratification of the convention. However, seven months later, the tripartite Federal Commission handling ILO affairs agreed to give serious consideration to the CFA recommendation of November 2006 on improving the protection of trade union representatives.