2008 Annual Survey of violations of trade union rights - Switzerland
|Publisher||International Trade Union Confederation|
|Publication Date||20 November 2008|
|Cite as||International Trade Union Confederation, 2008 Annual Survey of violations of trade union rights - Switzerland, 20 November 2008, available at: http://www.refworld.org/docid/4c52ca6c23.html [accessed 18 September 2014]|
|Disclaimer||This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.|
ILO Core Conventions Ratified: 29 – 87 – 98 – 100 – 105 – 111 – 138 – 182
Trade unionists are not adequately protected against reprisals. Limitations on the right to strike remained, to the extent that strikes are banned in some cantons and many communes. Bad faith practices in collective bargaining and interference were reported during the year.
Trade union rights in law
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.
Right to strike: The Federal Constitution calls for resolving industrial conflicts by means of negotiations or mediation if at all possible. The right to strike is guaranteed under the Constitution, on condition that the strike is connected to industrial relations and in line with "requirements to safeguard social peace or to seek conciliation". Strikes may only be carried out by organisations entitled to conclude collective bargaining agreements and on the issues than can be addressed by means of collective bargaining. Furthermore, a strike must respect the principles of fair conduct in collective conflicts, notably the proportionality rule.
If a strike is declared illegal, a participating worker may be summarily dismissed and liable for one forth of his or her monthly salary in severance pay as well as any damages that may be incurred. Trade unions can be sued as well.
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 clause whereby trade unions undertake to abstain from any strike action while the CBA is in force.
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. No conciliation or arbitration for such servants took place since 2002.
Blockades: In 2005 the Federal Court ruled that trade union's blocking of production is a collective action akin to a strike and therefore enjoys the same constitutional protection. However, a blockade is subject to the same set of criteria to determine its lawfulness. For example, surrounding a production unit by a "human chain" can be considered disproportionate by the court.
Lockouts: The Federal Constitution recognises employers' right to temporarily deny work to the employees (the lock-out) under the same conditions that the right to strike is recognised. Swiss trade unions report that lock-outs can be applied selectively, for example, only to those who have participated in a strike.
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. Discrimination in recruitment is not punishable at all if it only applies to the job advert.
The role of ILO standards: The Swiss legal system requires international treaties to be implemented by national legislation. In the absence of specific national provisions, ILO conventions do not endow private individuals and trade unions with rights that can be enforced by national courts. For example, in 2005 the Federal Court ruled that the Comedia union could not rely on Conventions 98 and 154 to ask for protection against acts of interference. While such a system exists in many countries, in Switzerland it is accompanied by the government's selective attitude towards implementing the Conventions.
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 was 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.
On 12 June a tripartite meeting took place in Bern to discuss the ILO recommendations. This was a much-welcomed departure from the previous government's position, when it questioned the legitimacy of CFA. However, there was no follow-up on that discussion due to the passive approach of employers. In August, the government once again replied to the ILO that the system was adequate and that no change was necessary.
Access to justice: Nineteen to twenty-six Swiss cantons allow workers to be represented by a trade union official in labour courts. The same applies to employers and their organisations. The government initiated the process of unification of judiciary, which also foresees that parties should have a professional lawyer to represent them in all courts. This would dramatically increase the costs of individual labour disputes. The matter was in the federal parliament at the time of writing. Meanwhile, the canton of St Gal decided to disband its labour court altogether, leaving labour disputes to the court of general civil jurisdiction. Trade unions opposed it, and the matter was put up for referendum.
Trade union rights in practice and Violations in 2007
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.
Grave consequences of a protest: A Federal Court ruling in December 2005 ordered the union Comedia to pay enormous damages to the Presses Centrales SA in Lausanne. The court ruled that, while their blockade was a legitimate means to defend workers' interests, it was disproportionate. After the employer called the police to break up the blockade, a minor scuffle ensued, which caused minor material damage.
The damages charged to the union were not just for reimbursement of the damage that was done, i.e., some 1,500 Swiss francs worth, 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. 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.
Bad faith practices in collective bargaining: No collective agreement has applied to the construction industry since autumn. The Swiss Entrepreneurial Society (SSE), the employers' organisation, in construction unilaterally terminated the sector-level collective agreement, and an industrial dispute ensued. The government tried to help as mediators, but the SSE leadership broke its promise to defend the agreement emerging before the employers: the SSE members were told that the result of negotiations was not definite, and subsequently failed to ratify the agreement. The Unia trade union announced a new strike.
Collective-bargaining-related problems in the Aldi supermarket chain, which were mentioned in the last year's Survey, still persist.
Obstacles to trade union activities: Representatives of the Unia trade union were denied access to the La Praille shopping centre in Geneva. The company security did not allow trade unionists to get in and take part in the trade union meeting, since "political manifestations" were prohibited by the internal rules, and a staff meeting would disturb the clients. Also in Geneva, the public prosecutor rejected the complaint submitted by the public transport department of Geneva against trade union members. The public transport department wanted to prosecute for "hampering" and "instigation of hampering", since the striking workers picketed the depot; however, the picket was not meant to block buses from coming out of the depot.
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. This year, the courts have addressed the seventh complaint by Migros for "violation of privacy" since 2001. 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 activity. Migros imposes a contractual requirement on its suppliers to guarantee union access to their companies. However, it only signs collective agreements with trade unions who accept in writing an obligation "not to criticise Migros in public". Unia, the biggest trade union in the retail sector, is excluded from this collective agreement.