2009 Annual Survey of violations of trade union rights - Switzerland
|Publisher||International Trade Union Confederation|
|Publication Date||11 June 2009|
|Cite as||International Trade Union Confederation, 2009 Annual Survey of violations of trade union rights - Switzerland, 11 June 2009, available at: http://www.refworld.org/docid/4c52cac7c.html [accessed 27 November 2015]|
ILO Core Conventions Ratified: 29 – 87 – 98 – 100 – 105 – 111 – 138 – 182
No progress was achieved in improving legal protection against anti-union dismissal. Several activists in at least five enterprises lost their jobs during the year. Measures to prevent trade unions from visiting workplaces are on the rise. The retail giant Migros once again stood out for its anti-union policies.
Trade union rights in law
Freedom of association: 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. Every man and woman of at least 16 years of age can join a trade union, even if s/he does not have a residence permit.
Right to strike: The right to strike is guaranteed in the Constitution, provided that the strike is connected to industrial relations and is in line with "requirements to safeguard social peace or to seek conciliation". Only a trade union that is entitled to engage in collective bargaining may call a strike. The strike must respect the principles of fair conduct in collective disputes, in particular the proportionality rule. Case law has recognised blockades as actions akin to strikes, which enjoy the same constitutional protection but can similarly be declared illegal. For example, surrounding a production unit by a "human chain" has been considered "disproportionate" by a court.
If a strike is declared illegal, a participating worker may be summarily dismissed and liable for one quarter of his/her monthly salary in severance pay as well as any damages that may be incurred. Penal sanctions may also be applied. Trade unions can also be sued.
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.
Public servants have the right to strike. The Government can limit or prohibit strikes if they affect state security, external relations or the provision of vital goods and services. However, there are no compensatory mechanisms, such as conciliation and arbitration procedures, for resolving industrial disputes in such situations.
The semi-canton of Nidwald and the canton of Fribourg have introduced laws banning strikes for the cantons' 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.
Lockouts: The Federal Constitution recognises the right of employers to temporarily deny work to their 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, although never as a means of pressure against individual employees.
Inadequate protection against anti-union dismissals: Swiss legislation does not permit the dismissal of union representatives, unless the employer can prove that a dismissal was justified. Nevertheless, in 2007 the Federal Court (judgement ATF 133 III 512) confirmed that employers have considerable scope thanks to the notion of redundancies "for economic reasons", even where trade union representatives are affected.
Dismissals for participating in a lawful strike are deemed to be unfair, however unfairly dismissed trade unionists do not have a legal right to be re-instated in their posts. The courts can only award the victim compensation of up to six months' wages (in practice the compensation has been lower). The law does not provide for the reinstatement of the people dismissed for their trade union activities. The ILO agrees with the view of the Swiss Federation of Trade Unions (SFTU, affiliated to the ITUC) that there are no sufficiently dissuasive legal sanctions to prevent anti-union dismissals in practice.
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 (such as workers 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 (CFA) 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.
Though the Government called into question the legitimacy of the CFA, it later changed its position and launched a tripartite discussion on implementing the ILO recommendations. However, no political or social consensus has been achieved: while the government considers that the low number of relevant judicial decisions proves that anti-union dismissals are not an issue, the unions argue that it is exactly the absence of dissuasive sanctions that prevents unfairly dismissed unionists from turning to the courts. The Swiss employers' organisation's position is that workers are adequately protected against anti-union dismissals.
Access to justice: 19 of the 26 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 the judiciary, which would expressly give this right to trade union organisations at the regional and national levels. This reform will be discussed in the Swiss Parliament in 2009.
Trade union rights in practice and violations in 2008
Anti-union dismissals: Anti-union dismissals are frequently used in reprisal for collective labour disputes. For example, workers who initiated the collective dispute in the Swissmetal-Boillat enterprise in Reconvilier (canton of Bern) were dismissed shortly after the conflict was resolved.
Similarly, several trade union delegates were made redundant "for economic reasons" from Frank Muller Genève (watch-makers).
In the canton of Fribourg, after a long period of conflict and negotiations, the management of the special education institution "Les Bosquets" dismissed trade union delegates "for professional misconduct" without following the procedures under the CBA or having any proof of the trade unionists' alleged wrongdoing.
A trade union leader was dismissed from a nursery school on fabricated grounds six months after participating in a national strike, which, in the view of the management, "had gone too far" (the court later declared the dismissal unlawful).
Bern Symphony Orchestra to muffle a trade unionist: At the end of 2007, the leader of the Bern Symphony orchestra trade union was summoned to the Director's office. He was informed that his employment had been suspended with immediate effect and would be terminated at the end of the season (July 2008). The dismissal notice stressed that the termination of employment had nothing to do with the musician's trade union activities, but his union, SMV, was convinced of the contrary. The union had to choose between going to court with a good chance of winning the case, but no hope of achieving his reinstatement, or trying to negotiate the musician's return to work. In March, thanks to the trade union's efforts the musician was reinstated, though with the understanding that he would not hold any trade union post for the next two years.
Representative trade unions sidelined: Due to the lack of clearly defined rules on the representativeness of trade union organisations in Switzerland, employers tend to select the most pliable workers' organisations as partners, including some "ghost" associations. The employers' organisation for the German-speaking carpentry profession tried to bypass the biggest trade union in the sector, Unia (affiliated to the SFTU), by organising a "staff assembly" behind closed doors, while employer-sponsored private security agents kept the workers away from the Unia delegates.
In Geneva, the industrial butchers' firm Del Maitre made similar attempts to avoid dealing with Unia by negotiating with a minority trade union. The SFTU reports that some national-level employers' organisations have been openly slandering majority trade unions, while praising those not affiliated to the SFTU.
Migros against trade unions: The retail chain Migros has been spreading the following buzzword amongst its employees: "Those who are for Unia are against Migros". On a number of occasions Migros employers have tried to charge Unia representatives visiting trade union members in Migros shops with trespassing. Migros is prepared to bargain collectively with other trade unions as long as there is no public criticism of the Migros management.
Other violations: More and more employers are trying to obtain court orders barring trade unions from workplaces. While the employers' efforts almost always fail, the district court of northern Vaud convicted a member of the SSP trade union of trespassing, following a trade union action in the la Chotte/les Driades retirement home.
La Praille shopping centre is still employing private security guards to enforce the ban on any "political, religious or trade union" activities on the premises. In the canton of Bern, when Unia came to inform the trainees at the Frutigen College of their professional rights, the police were called in to make sure the union representatives did not enter the premises. The school director openly told the press "I do not support trade unions".