2010 Annual Survey of violations of trade union rights – Switzerland

Population: 7,600,000
Capital: Bern
ILO Core Conventions Ratified: 29 – 87 – 98 – 100 – 105 – 111 – 138 – 182

When companies are forced to downsize, workers’ representatives are especially vulnerable. Even when courts confirm anti-union dismissals, reinstatement is almost never an option. More anti-union harassment was reported in the retail giant Migros. Several restrictions apply to the right to strike.

Trade union rights in law

Basic trade union rights are secured in law, but are not without limitations. The Federal Constitution explicitly recognises the right of workers to form and join unions. Although union representatives enjoy a certain degree of protection against dismissal, the Federal Court has confirmed that employers have considerable leeway due to the notion of redundancies “for economic reasons”, and reinstatement is not possible. The right to strike is limited, as all strikes must be connected to industrial relations to be legal. 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 dispute resolution mechanisms for the workers affected. Furthermore, if a strike is declared illegal, workers can be summarily dismissed and liable to pay compensation, as well as damages. Penal sanctions may also be applied. Finally, the semi-canton of Nidwald and the canton of Fribourg have introduced laws that ban strikes for the cantons’ staff.

Trade union rights in practice and violations in 2009

Background: Although the economy officially went into recession in January, in September, the World Economic Forum recognised the country as having the most competitive economy. Companies in the industrial sector laid off a big part of their workforce, and the unemployment rate climbed over the 4% mark, which is high by local standards. On 19 November, 30,000 workers marched on the streets of Bern demanding fair policies to secure work, wages, and pensions in the face of the global economic crisis.

Weak dismissal protection to attract investors: A small canton of Obwalden is trying to attract businesses by promoting “employer-friendly labour law” in the press and on its official website. Easy dismissals and the predominance of individual employment contracts over general agreements are particularly stressed.

Anti-union redundancies: The Swiss trade union confederation USS reports a number of incidents where trade union representatives were singled out for redundancies. Examples include Ernst Gabathuler at textile machinery producer Karl Mayer AG (Benninger Guss AG before the takeover), who was employed for over 40 years and served as the workers’ representative for many years; two chairmen and four members of personnel commissions at newspapers “Tagsanzeiger” and “Bund”, following the restructuring of the newspapers; and Giuliano Ossola, a trade union leader who was employed for over 40 years in AGIE SA in Losone. Another activist in a chemical company in Romandie lost his job after reporting several violations of the collective agreement. The company, who had earlier dismissed two other members of the enterprise commission, claimed that the workers were dismissed purely for economic reasons. One more trade union leader received formal warnings after he had informed his colleagues of forthcoming lay-offs.

Even though the link between union activities and dismissals is not always sufficiently evident to prove anti-union activities, vocal union representatives are especially vulnerable when companies downsize, and the law gives them no special protection.

Union leader dismissed: In February, Marisa Pralong, chairwoman of the Unia branch at the Manor department store in Geneva, lost her job as a salesperson after a local newspaper quoted her criticism of extended working hours for retail employees in the store. Even though the cantonal industrial relations tribunal (la chambre des relations collectives de travail – CRCT) ruled that Pralong should be reinstated, management appealed to the Federal Court. In July, the Federal Court decided to suspend Pralong’s reinstatement order until a definite judgement was reached.

No reinstatement: In March, Jean-Marc Hazard, a Unia shop steward and the president of the local personnel commission at IPN Healthcare SA in Châtel-St-Denis, Fribourg, was fired from his job. The labour court confirmed that the dismissal was an act of anti-union discrimination. However, since neither law, nor the relevant collective agreement in question, provided for reinstatement, Hazard was only awarded monetary compensation.

Worker almost loses his job after talking to a trade union: A spokesperson for the personnel commission at an industrial company in Romandie was suspended from work in autumn and ordered to return his keys. The worker’s “crime”, according to the management, was speaking out against the company’s proposed relocation and meeting with the trade union secretary. The union launched a campaign to save the worker’s job, and he remained employed at the end of the year.

Famous restaurant reported for anti-union behaviour: The trend of employers trying to use anti-trespassing laws to prevent trade unionists from entering the workplaces continued. In October, celebrity chef Philippe Chevrier filed a complaint accusing the Unia trade union of trespassing onto his restaurant Domaine de Châteauvieux in Satigny, Geneva canton. He also called on the police to “hunt trade unions down”, and threatened union representatives who came to inform the staff and the patrons about the salaries and working conditions applicable under a new collective agreement. The union has previously intervened in other Chevrier establishments to denounce violations of collective agreements and the labour law.

Migros get rid of shop steward: In November, Hafir Sedolli, a shop steward of the Unia trade union at the Migros distribution centre in Suhr (Aargau canton), lost his job after submitting numerous complaints pertaining to poor and unsafe working conditions. Sedolli, who had been engaged on a temporary basis, was offered a new employment contract under the condition that he stop “helping his colleagues”.

Earlier, in July, Migros had released another Unia activist, Peter Walser, from work. Walser had been unable to work for a period of time due to a serious injury suffered in 2008, but when he regained his health, the employer dismissed him for “economic reasons”. Unia suspects that Walser’s long history of trade union activities was a main factor behind this decision. The union tried to negotiate his re-engagement to a less physically demanding position, but the outcome was not known by the end of the year. Migros has been mentioned in several previous editions of the Survey for various anti-union incidents.

source: http://www.unhcr.org/cgi-bin/texis/vtx/refworld/rwmain?page=country&docid=4c4fec562d&skip=0&coi=CHE&querysi=trade&searchin=title&display=10&sort=date

2009 Annual Survey of violations of trade union rights – Switzerland

Population: 7,400,000
Capital: Bern
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”.

source: http://www.unhcr.org/cgi-bin/texis/vtx/refworld/rwmain?page=country&docid=4c52cac7c&skip=0&coi=CHE&querysi=trade&searchin=title&display=10&sort=date