National labour law profile:
The Swiss Confederation
Contributed by Niels Petersen. Updated in 2007 by Angelika Muller, ILO.
General legal framework
The new Swiss Constitution was
adopted on 18
April 1999 by popular vote. Under its terms, Switzerland is a Confederation
comprised of 26 cantons (Art. 1 Const.), which enjoy some degree of autonomy.
They exercise all the competencies that are not vested in the Confederation.
The latter can therefore only intervene in matters entrusted to it under
the Constitution. In the event of conflict between a federal and a cantonal
rule, the first prevails over the second insofar as it was promulgated
within the scope of federal competencies. The Swiss legal order is based
on the principle of the separation of powers. In exercising their power,
the Swiss authorities must furthermore observe the fundamental rights enshrined
in the Constitution (Art. 35.2 Const.).
The principal law-making body is the Federal
Parliament (Assemblée
fédérale). It comprises two houses, the House of Representatives (Conseil national), composed
of 200 deputies elected directly by the people under a proportional system,
and the Senate (Conseil des Etats), comprising 46 cantonal deputies
(Art. 148-150 Const.). The Federal Parliament is empowered to promulgate
federal laws (Art. 163.1 Const.) by a simple majority of votes (Art. 159.2 Const.). In certain
spheres nevertheless, Swiss citizens have the right to participate directly
in the law-making process through a mandatory referendum (Art. 140 Const.)
or an optional referendum (Art. 141 Const.).
The Swiss lawmaker must respect the rules
of international law (Art. 5.4 Const.). The power to sign and ratify international
treaties is vested in the Federal Government (Conseil fédéral). Except for extreme cases,
the latter must submit them for the approval of the Federal Parliament
(Art. 184.2 Const.). In some fields, popular participation in the approval
procedure is also required. As pertains to the rank of international law
in the domestic legal order, Swiss legal practice has chiefly recognised
the principle of the primacy of international law over federal laws.
The Federal Government is the supreme executive
organ of the Confederation (Art. 174 Const.). Its seven members are elected
by the Federal Parliament for four-year terms of office (Art. 175 Const.).
The President of the Confederation is elected for one year by the Federal
Parliament from amongst the members of the Federal Government.
Judicial power is vested in the Federal Supreme
Court (Tribunal
fédéral, TF) and in lower courts whose organisation falls within
the competence of the cantons. The TF is composed of 30 judges elected
for six years each. The TF is the supreme judicial body in all spheres,
including all labour matters (Art. 188 Const.). As for the lower courts,
jurisdiction is organised differently from one canton to another. One half
of them have created special courts for disputes falling under private
labour law.
Labour law in the Constitution
In the sphere of labour legislation, law-making
power rests mainly with the Confederation. Amongst other things, this encompasses
protection of workers, relations between employers and workers, placement
services and the determination the scope of application of collective labour
agreements (Art. 110.1 Const.). Moreover, the Confederation is competent
to legislate on unemployment insurance (Art. 114.1 Const.) and on social
security. Lastly, the Confederation legislates on civil law (Art. 122.1
Const.), which includes legislation on employment contracts.
The Swiss Constitution prohibits all forms
of discrimination (Art. 8.2 Const.). It specifically prescribes equal treatment
of men and women and equal pay for work of equal value (Art. 8.3 Const.).
It further guarantees the free choice of occupation, free access to an
economic activity (Art. 27.2 Const.) and freedom of association (Art. 23
and 28 Const.). Besides, the Constitution sets out social objectives, which
cannot however be directly invoked before the courts as subjective rights but
which nonetheless bind the Swiss lawmaker. These include the objective
that all persons capable of work should be able to practise an occupation
under equitable conditions so as to assure their maintenance, and that
whereby children can receive an appropriate education (Art. 41 Const.).
Bilateral Relations with the European Union
In October 2004, Switzerland has concluded a bilateral
agreement with the European Union on the free movement of persons. This
agreement took effect on 1st April
2006. It provides that citizens of the contracting parties have the
right to occupational mobility between the territories of the other contracting
parties (Art. 7, Bilateral Agreement on the free movement of persons),
including the free choice of employer, employment and occupation, as well
as the freedom to change places of work and of residence.
Sources of labour law
The main source of labour law is federal legislation.
In addition, federal ordinances, collective agreements and standard contracts
play a key role. Nevertheless, Swiss labour law is not codified. A distinction
can be drawn between private labour law, whose provisions pertain to the
employment contract, public labour law, which imposes minimal standards
for worker protection, and collective labour law.
The employment contract is governed by Arts. 319-362
of the Code of Obligations (CO), which became effective
in 1911. Employment contract law was extensively reviewed in 1971.
As for the provisions of individual labour law stemming from public law,
the Federal Labour Statute of 13
March 1964 (LT) is the most important law. Alongside that law, there are
the following main ones:
- Work in transport and communication enterprises: Federal Statute of 8 October 1971 on work in public transport
enterprises (Working Hours Statute, LDT); Federal Statute of 23 September
1953 on maritime navigation under the Swiss flag
- Homework: Federal
Statute of 20 March 1981 on homework (Homework Statute, LtrD)
- Training: Federal
Statute of 19 April 1978 vocational training (LFPr)
- Others: Federal
Statute of 6 October 1989 on the employment service and the hiring of services
(LSE);
Federal Statute of 24 March 1995 on equality between men and women (Equality
Statute, LEg)
Based on Federal Parliament legislation, the
Federal Government has issued several ordinances to supplement and give
concrete expression to the former. They include the following:
- Labour
Statute: Ordinance of 26 November 1975 regarding the LT; Ordinance 1 of
10 May 2000 concerning the LT (OLT 1); Ordinance
on the protection of maternity; Ordinance 2 of 10 May 2000 concerning
the LT (OLT 2); Ordinance 3 of 18 August 1993 regarding the LT (Hygiene,
OLT
3); Ordinance 4 du 18 August 1993 regarding the LT (OLT 4); Ordinance
of 25 November 1996 on the qualifications of occupational safety experts
- Work in transport and communication enterprises: Ordinance
of 20 November 1956 on maritime navigation; Ordinance of 19 June 1995 on
chauffeurs (OTR 1); Ordinance of 6 May 1981 on working
hours and rest for professional drivers of light passenger transport
vehicles and tourist busses (OTR 2)
- Homework: Ordinance
of 20 December 1982 concerning homework (OtrD)
- Training: Ordinance
of 7 November 1979 on vocational training (OFPr)
Collective
labour law is regulated by the following provisions:
- Collective labour agreements: Arts. 356-358
CO; Federal Statute of 28 September 1956 allowing for the extension of
the scope of application of collective labour agreements
- Industrial disputes: Federal
Statute of 18 June 1914 on Factory Work; Federal Statute of 12 February
1949 on
the Federal Labour Dispute Conciliation Office; Special Regulations of
2 September 1949 pertaining to the Statute on the Federal Labour Dispute
Conciliation Office.
Collective labour agreements are concluded
between employers or their associations and workers' associations. Their
legal nature is that of statutes. Some of their provisions have a normative
effect that nevertheless binds only the parties to collective agreements
and, in the case of associations, their members. The possibility does however
exist for employers or workers employed by an employer who is bound by
a collective agreement to submit to it. At the request of all the contracting
parties, the Federal Government or the competent cantonal authority may
extend the scope of a collective agreement to the employers and workers
belonging to the branch of the economy or the profession concerned and
who are not bound by this agreement, provided that the requirements of
Arts. 2-3 of the Federal Statute of 28
September 1956 allowing for the extension of the scope of application
of collective agreements are met.
Standard contracts are ordinances designed
to protect workers in fields where no collective agreements as yet exist.
They are issued either by the Federal Government or by the cantons and
lay down clauses on the conclusion, subject and purpose of various types
of employment contracts (Art. 359.1 CO). They apply directly to the employment
relations that they govern, though the parties may depart from them by
means of an individual agreement (Art. 360 CO).
Employment contracts
Under Art. 319 CO, by the individual
employment contract, the worker undertakes to work for the employer, for
a fixed or indefinite term, and against remuneration.
No special form is required for an individual
employment contract (Art. 320.1 CO). However, when the duration of employment
relationship is unlimited or of more than one month, the employer must
inform by written the worker on specified work conditions (Art. 330b CO,
such as name of the parties, the date of the beginning of the employment
relationship, job description, salary conditions and weekly number of work
hours.
The duration of the employment contract is
set by agreement of the parties. It is indefinite, except where a fixed
term has been agreed by the parties or is dictated by the nature of the
work. Fixed-term contracts terminate with the expiry of the agreed period.
If a fixed-term contract is tacitly renewed,
it is deemed concluded for indefinite duration (Art. 334, CO). However,
a fixed-term agreement intended to circumvent the terms and conditions
of dismissal prescribed by law is void.
Particular employment contracts
Apprenticeship contracts: Apprenticeship contracts must be concluded in
writing (Art. 344a.1 CO) and approved by the competent authority (Art.
20.1 LFPr). It is incumbent on the master to train the apprentice in a
systematic and comprehensive manner. On the other hand, the apprentice
must make every effort to attain the goal of the apprenticeship. The employment
contract terminates upon expiry of the period of apprenticeship or once
the apprentice has passed the final apprenticeship examination. Dismissal
during an apprenticeship contract is not possible except during the probationary
period or for justifiable cause (Art. 346 CO).
Contracts for the hiring of commercial
travellers: Commercial travellers are deemed to
be all persons who undertake to negotiate or conclude business matters
of any kind on behalf of the head of a commercial enterprise (Art. 347.1
CO). Business travellers' employment contracts must be concluded in writing.
Business travellers are bound by their employer's instructions. Termination
of employment must meet certain special conditions (Art. 350 CO).
Homework contract: A homework contract is characterised by the fact that work for
the employer is performed by the worker, personally or with help of his/her
family members, against remuneration, at home or at a location of his/her
choice (Art. 351 CO). The worker is obligated to deliver the product of
his/her work within a set timeframe. If the employment relationship is
continuous in nature, wages are paid periodically. Otherwise, payment is
effected upon delivery of the product of the work. (Art.
353a.1 CO).
Probationary period
During the probationary period the employment
contract may be terminated with a 7-day notice period (Art. 335b.1 CO). The probationary
period is one month. Various provisions can be agreed in writing, by standard
contract or collective agreement, though the probationary period may not
exceed three months (Art. 335b.2 CO).
Suspension of the employment contract
The employment contract is suspended during
strikes or lockouts. The consequence of suspension is that the contracting
parties are relieved of their main obligations under the employment contract,
especially that of providing labour, and, correspondingly, that of wage
payment.
Termination of employment contracts
Employment contracts may be terminated:
- at
the initiative of one of the parties;
- by
mutual agreement;
- at
the expiry of the period agreed in the framework of a fixed-term contract;
- for
fair reasons (Art. 337 CO);
- at
the workers’ death (Art. 338.1 CO).
Employment contracts are mostly terminated
at the initiative of one of the parties. It needs not take a specific form.
Nevertheless, it must be justified in writing at the request of the other
party (Art. 335, 337CO).
Dismissal by the employer
Two types of termination of employment relationships
are envisaged under Swiss law. The employer may terminate the contract
by ordinary dismissal or by means of dismissal with immediate effect.
The ordinary period of dismissal notice varies
according to length of service. The notice period is of one month during
the first year of service, two months for the employment from two to nine
years, and three months for the employment whose duration exceeds nine
years. The timeframes envisaged under the law may be changed by written
agreement, standard employment contract or collective agreement, but may
not be less than one month. Exceptions to this rule are admitted during
the first year and if they have been set by a collective agreement (Art.
335c CO).
In the case of collective redundancies, the
employer may terminate the employment contracts with a 30-day notice period
(Art. 335d CO).
The employer is also required to consult the workers' representatives before
proceeding to redundancies and notify the cantonal labour office.
Dismissal is deemed to be a misuse of rights
if it is motivated, among others, by personal reasons or the fact that
a worker has exercised his/her constitutional rights, especially the right
to participate in trade union activities or a works council, or if he/she
is performing a compulsory military or civil service. Collective dismissals
in breach of the rules on consultation procedures also constitute a misuse
of rights (Art. 336 CO).
The party liable for the misuse of rights
for the termination of employment must pay compensation which is decided
by the judge and may not exceed an amount corresponding to six months'
wages. Only dismissal in an untimely manner is deemed to be void.
The employer is not allowed to dismiss a worker
under some specified conditions, in particularly, during compulsory service,
illness or pregnancy (Art. 336c CO).
The employer may terminate an employment contract
immediately and without notice if there are good grounds for such immediate
termination, especially circumstances which, in keeping with the rules
of good faith, render the continuation of the work relationship intolerable
for said employer (Art. 337 CO). If termination with immediate effect is
unjustified, it does nonetheless remain valid. However, the party who terminates
the contract with immediate effect without justifiable cause must indemnify
the other party.
Termination of employment at the initiative of the worker
Workers may terminate the contract within
the same timeframes as the employer unless such termination is unreasonable
or untimely. Resignation is untimely if the worker terminates the contract
while a superior whom he/she is required to replace is performing a compulsory
service (Art. 336d.1
CO).
A worker may terminate his/her employment
contract with immediate effect for justifiable cause (Art. 337.1 CO) or
in the event of insolvency of the employer, if the latter is unable to
provide security for the worker's claims arising from the employment relationship
(Art. 337a CO).
If the termination is unreasonable or if termination
with immediate effect is not based on justifiable cause, the employer is
entitled to compensation (Art. 336a.1, 337d.1 CO).
Collective dismissal
The dismissal is deemed collective when the
employer dismisses – within 30 days – a certain number of workers without
specific individual reasons (Art. 335d CO). These measures have to affect
a minimum of:
- 10 workers in
enterprises employing usually between 20 and 100 workers;
- 10 per cent of
the workers in enterprises employing usually between 100 and 300 workers;
- 30 workers in
enterprises employing usually more than 300 workers.
Hours of work
The maximum weekly number of working hours
is 45 for workers engaged by industrial enterprises and for employees,
whilst it is 50 hours for all other workers (Art. 9 LT). Nevertheless,
under certain conditions, this maximum may be extended by four hours at
the most, either with compensation within a set timeframe or - in exceptional
cases - without compensation. Workers may perform night work only if certain
conditions are met (Art. 10 LT). Night work is allowed in certain specified
branches under the OLT 2, in the event of an urgent need (Art. 27 OLT 1)
or owing to a technical or economic imperative (Art. 28 OLT 1).
Different rules govern workers in public transport
enterprises. Barring exceptional circumstances, their working day may not
exceed seven hours per day for an average of 28 days (Art. 4.1 LDT). This
yields an average of 42 hours per week.
In most branches of activity, working hours
are set by collective agreements, and range between 40 and 42 hours weekly.
There are branches, however, where the social partners have not bargained.
In various sectors, an annual number of working hours has been introduced
so as to allow employers more flexibility. For 2006, the average weekly
number of hours worked was 41.8 in Switzerland.
Overtime working hours are compensated by
a rest period of the same duration or by a salary increase of 25 per cent
at least (Art. 321c.3 CO).
Paid vacations
The employer must grant workers at least four
weeks of vacations per year and at least five weeks to workers up to the
age of 20 years (Art. 329a.1
CO). During such vacations, the employer must continue to pay wages, except
where the worker performs work for a third party during her/his vacations
to the detriment of the employer's legitimate interests (Art. 329d CO).
Besides, each worker is entitled to one day off per week - Sunday as a
rule (Art. 329.1 CO). Exceptionally, the employer may grant the worker
two half-days free instead of a full day, provided that it is required
by specific work conditions and the worker consents to it.
Protection of maternity and maternity leave
Pregnant women and breastfeeding mothers are
entitled to be assigned such work as does not endanger their health or
that of their child (Art. 35 LT; Chapter 5 OLT 1). In no case must their
work schedule exceed nine hours per day (Art. 60 OLT 1). Night work is
forbidden for expectant mothers and for those having recently given birth
until the end of the 16th week following childbirth. If the employer is
unable to provide equivalent work appropriate to these circumstances, the
women concerned are entitled to 80 per cent of their wages (Art. 35 LT).
Pregnant women may be dispensed from going
to work or may leave work upon simple notice. It is forbidden to employ
women during the eight weeks following childbirth. Until the 16th week,
work is possible only if the woman consents to this (Art. 35a.3 LT).
After giving birth, the woman is entitled
to a leave whose duration is 14 weeks at least (Art. 329f CO).
Women are entitled to continue receiving their
wages for a certain time after giving birth. The length of this period
depends above all on the duration of the employment relationship (Art.
324a CO). Many collective
agreements contain provisions more advantageous to women workers than those
prescribed by law.
Wages when workers are prevented from working
If through no fault of their own workers are
prevented from performing by illness, accident, the holding of public office
or the fulfilment of a legal obligation, they are exempted from the obligation
to perform work. The employer is nevertheless obliged to continue to pay
the workers' wages for a set period of time. The duration of that period
is relative to that of the employment relationship, but it may not be less
than three weeks (Art. 324a CO).
Besides, workers are entitled to free days
to attend to personal matters, for family events such as death, serious
illness, the marriage of a close relative, the birth of a child or to seek
a new job (Art. 329.3 CO). The precise conditions are often set by collective
agreements. Generally, they stipulate one to three days leave for a family
event, depending on its nature.
The employer must also grant one week of youth
vacation (congé-jeunesse) to
workers of up to 30 years of age to enable them to engage in volunteer
work for a social or cultural organisation (Art. 329 e.1 CO). Workers are
not however entitled to wages during youth vacations (Art. 329e.2 CO).
Minimum age and protection of young workers
Young people may not be employed before turning
at least 15 years of age (Art. 30.1 LT). There are some exceptions to this
principle, however. Accordingly, young people under 15 years of age may
work at cultural, artistic or sporting events and in advertising. They
may also perform light work if they are over 13 years of age. In those
cantons where compulsory schooling is completed before the age of 15, other
exceptions from this rule may be authorised under certain conditions for
young people of 14 years and over (Art. 30.3 LT).
Workers who have turned 19 years of age and
apprentices who have reached 20 years are deemed as young workers (Art.
29.1 LT) and protected by special provisions. The category of tasks they
may perform is therefore limited. Young workers must not be assigned work
that exposes them to excessive physical mental strain or entailing high
risk to their health, or underground work in galleries and mines (Art.
47 OLT 1). There are also further restrictions for workers of less than
18 and less than 16 years of age (cf. Arts. 48, 49 OLT 1).
The daily rest period must be at least 12
hours. Night work and work on Sundays is allowed only under certain very
limited conditions and only for workers of 16 years and over (Arts. 58,
59 OLT 1). Overtime work may be effected only
by young people over 16 years of age and on working days, without exceeding
the limits set for daytime work (Art. 57 OLT 1).
Equality
The Swiss Constitution generally prohibits
all forms of discrimination based on origin, race, sex, age, language,
social position, lifestyle, religious, philosophical and political persuasion
or a person's physical, mental or psychological deficiencies.
In the world of work, special protection is
given against discrimination based on sex. In this connection, equality
between men and women is enshrined in Art 8.3 of the Constitution. This
constitutional provision is given concrete form in the Federal Statute
on Equality between Women and Men of 24 March 1995 (LEg). This Statute
prohibits all forms of discrimination (Art. 3 LEg). Discrimination is defined
as any kind of behaviour based on gender that undermines the dignity of
the person at her/his place of work (Art. 4 LEg). Expressly excluded from
these are appropriate measures aimed at promoting real equality between
women and men (Art. 3.3 LEg). Victims of discrimination
within the meaning of Art. 4 LEg may take recourse to the courts
or an administrative authority (Art. 5 LEg).
Any person undergoing discrimination in the
termination of an employment contract may claim compensation from the employer
(Art. 9 LEg). If dismissal comes in the wake of an allegation of discrimination,
it may even be reversible (Art. 10 LEg).
Wages
The Swiss lawmaker has set no minimum wage.
On the contrary, wages are very often set by collective agreements and
standard employment contracts. Nevertheless, the wages thus set are no
more than minimum wages from which the parties to an employment contract
may depart, to the benefit of the worker (Art. 357d.2
CO).
Remuneration must be paid at the end of each
month, except where the collective agreement or standard contract provides
otherwise. Shorter timeframes may also be set in individual employment
contracts (Art. 323.1 CO).
Workers' wages are in part protected against
attachment. That part of income from work that is indispensable
to the worker and her/his family may not be attached (Art. 93.1, Federal
Statute on Debt Collection and Bankruptcy, LP). The employer may
set off counterclaims only against that part of wages that is attachable,
except when the claims arise from intentional damages (Art. 323b CO). In the
event of insolvency on the part of the employer, workers' claims arising
from the employment contract are privileged in the ranking of unsecured
claims (Art. 219.4a CO).
Workers' unions
Workers' unions play a meaningful role in Switzerland's economic, social
and political life. Apart from the negotiation and conclusion of collective
agreements, their task also encompasses participation in lawmaking through
consultation and the pursuit of workers' interests before the courts. Nevertheless,
only one-fifth of Switzerland's workers are members
of a workers' union.
There are no legal provisions on the legal
form or the organisation of trade unions. In practice, the most common
form is that of an association; trade unions are sometimes created in the
form of cooperative societies.
Freedom of association is guaranteed under
Art. 28 of the Federal Constitution. It covers
not only the freedom to join together to defend common interests but also
the freedom to join or refrain from joining a trade union. This freedom
of association is protected by the prohibition of any clause in collective
agreements that could compel employers or workers to join a contracting
association (Union Security Clause, Art. 356a CO).
An "opt-in" clause is nevertheless admissible. Such clauses are
designed to oblige workers to submit to collective agreements without necessarily
becoming members of one of the contracting association concerned. That
submission may also entail the obligation to pay a certain solidarity contribution
set by the collective agreement.
Employers must also respect the freedom of
association of workers. It is protected - albeit with a degree of flexibility
- by Art. 336.2a CO, which classifies as abuse of rights
any dismissal on grounds of worker involvement in trade union activities. The
consequence of such dismissal is that the employer must pay compensation
to the worker.
Collective labour agreements
Collective labour agreements are negotiated
and concluded by employers or employers' associations on the one hand,
and workers' associations on the other. To be eligible to become a party
to a collective agreement, the workers' association must have acquired
legal personality. The right to bargain and conclude collective agreements
is not restricted by law. Nevertheless, an employers' association is not
empowered to refuse to bargain a collective agreement with a workers' association
with a view to weakening the position of workers.
Effects of collective agreements
Two types of provisions can be distinguished
in collective agreements. On the one hand, there are clauses concerning
the terms and conditions of employment which are normative in effect. They
bind all employers and workers members of a contracting association, as
well as all those who have opted into the collective agreement in question.
At the request of all the contracting parties, the normative effect may,
under certain conditions, be extended to all employers and workers belonging
to the economic branch covered by the agreement (Art. 1, Federal Statute of 28 September 1956 allowing
for the extension of the scope of application of collective labour agreements). The
relevant competence is vested in the Federal Government or, in the case
of a cantonal-level collective agreement, the competent cantonal authority,
with the approval of the Federal Government.
The normative effects of collective agreements
are direct and binding (Art. 357.1 CO). The clauses in an individual employment
contract that are contrary to the provisions of a collective agreement
are null and void, and are automatically superseded by the latter provisions
except where the exception concerned is more favourable to the workers
(Art. 357.2 CO).
In addition to provisions with a normative
effect, collective agreements also produce effects that concern the contracting
parties exclusively. Accordingly, the associations concerned are obliged
to implement them and to preserve industrial peace (Art. 357a CO). Pursuant to
the first, it is incumbent upon the parties to ensure that all their members
observe the provisions of the collective agreements and, if necessary to
take enforcement measures to implement them. The obligation to preserve
industrial peace implies the duty to refrain from any kind of challenge
to matters settled in the agreement. In addition, the contracting parties
often agree on other contractual provisions, such as clauses establishing
compensation funds, joint committees or arbitration tribunals.
Termination of collective agreements
Collective agreements terminate upon expiry.
When they are not concluded for a set period, each party may denounce them
upon expiry of one year, to take effect after six months (Art. 356c.2 CO). The result
of such denunciation is the cancellation of the collective agreement for
all the contracting parties. With the termination of a collective agreement,
its normative effects also cease.
Workers’ representation in the enterprise
In enterprises employing less than 50 workers,
the latter are entitled to elect workers’ representatives. Elections are
general, free and, at the request of one-fifth of the workers, also secret
(Art. 6, Participation Statute). To protect workers’ representatives, the
employer is forbidden to penalise them on grounds of the exercise of their
representational activities (Art. 12, Participation Statute). Dismissal
on such grounds is deemed to be an abuse of rights (Art. 336.2b CO). Besides,
workers’representatives may exercise their mandate during working hours
(Art. 13, Participation Statute). On the other hand, they have a duty of
discretion with respect to the affairs of the enterprise and the personal
affairs of workers, insofar as they acquire knowledge of facts pertaining
thereto in the exercise of their mandate (Art. 13, Participation Statute).
Workers' representatives enjoy certain rights
of participation. The employer must inform them about all matters pertaining
to their task of representation, in particular concerning the implications
of the enterprise's business performance for the staff (Art. 9, Participation
Statute). Furthermore, they may participate in the enterprise's decision
making with regard to safety at work, the transfer of the enterprise and
collective dismissals (Art. 10, Participation Statute). Where the enterprise
has no workers’ representation, these rights of participation are vested
in each worker (Art. 4, Participation Statute).
Dispute settlement
As pertains to labour dispute settlement,
a distinction is drawn between individual labour law disputes and collective
labour law disputes.
Individual dispute settlement
The possibility to challenge an administrative
decision before the administrative cantonal and federal authorities is
open to the employers' and workers' associations
concerned (Art. 58 LT). Moreover, the implementation by the employer of
public-law provisions regarding terms and conditions of employment may
be put forward as a contractual obligation before civil courts (Art.342.2
CO).
Private disputes fall within the jurisdiction
of civil courts. As a general rule, labour law suits in which the amount
in dispute is less than CHF 30,000 are subject to a simple and expeditious
procedure (Art. 343.2 CO). One-half of Switzerland's cantons have set
up special courts for labour law disputes. They are characterised by their
procedural rules and the composition of the judges. Appeals are heard by
cantonal supreme courts, except in the canton de Geneva, where an appellate
chamber fulfils this function. Nevertheless, individual employment contracts
or collective agreements often contain derogatory clauses providing for
an arbitration procedure instead of action before State courts. These clauses
are valid if the arbitration envisaged is in conformity with the Arbitration
Convention (Concordat
sur l'arbitrage) of 27 March 1969.
Labour dispute settlement
Amongst labour disputes, a distinction can
be drawn between disputes at law and disputes over interests. The first
encompass all disputes pertaining to the implementation and interpretation
of agreements between the two sides. In this connection, the parties may
choose between an arbitration procedure and a judicial procedure. In contrast,
differences of interest arise during bargaining for a new agreement, and
no party may stake a judicial claim.
Various State conciliation bodies have been
created for the settlement of labour disputes, namely the Federal Conciliation
Office and the permanent cantonal conciliation offices. The first is set
up by the Federal Department of the National Economy on the authorisation
of the Federal Government at the request of the parties concerned (Art.
1, Federal Statute on the Federal Labour Dispute Conciliation Office (Loi fédérale concernant l'Office
fédéral de conciliation en matière de conflits du travail).
The Federal Office deals only with differences of interest. In contrast,
the competence of the permanent cantonal conciliation offices also covers
disputes at law. They intervene either ex officio or at the
request of the authorities or concerned parties to settle labour disputes
at the cantonal level (Art. 31.1, Factory Work Statute (Loi sur le travail dans les fabriques)).
Should conciliation before the conciliation office be unsuccessful, the
parties may request it to hand down a binding arbitral award. However,
such an arbitration procedure can take place only if all the parties agree
to it.
Yet collective agreements often envisage the
creation of conciliation committees or private arbitration tribunals. In
the event, the competence of these private institutions prevails over that
of the State bodies (Art. 1.3, Federal Statute on the Federal Labour Dispute
Conciliation Office; Art. 33, Factory Work Statute).
Strikes and lockouts
The right to strike is implicitly guaranteed
under Art. 28.3 of the Swiss Constitution. Striking
is nevertheless only of minor significance as by far the most labour disputes
are settled without recourse to industrial action. There are no legal regulations
pertaining to strike law. The legal framework for strike action is determined
solely by case law and the doctrine.
Prerequisites for strike action
As a means of settling labour disputes, strike
action plays a role that is strictly subsidiary to conciliation. A strike
is therefore only admissible after conciliation has failed. Besides, it
must respect the obligation to preserve industrial peace. As striking is
a means of exerting pressure on the social partner so as to obtain better
terms and conditions of employment, it must only be used in pursuit of
goals that can be regulated by a collective agreement. Political strikes
or those intended to enforce judicial aspirations are therefore illegal.
This is why a strike must furthermore be led by an organisation with the
capacity to conclude collective agreements. Lastly, strike action must
observe the principles of fair conduct of labour disputes and of proportionality.
Some groups of persons do not enjoy the right
to strike. These include civil servants and senior management staff.
Effects of strike action
The consequence of lawful strikes is the suspension
of the main obligations arising from employment contracts between the strikers
and the employer, including the employer's obligation to pay wages. A strike
is not sufficient grounds for immediate dismissal. Moreover, dismissal
intended to break the resolve of striking workers is deemed to be an abuse
of rights.
In the event of an unlawful strike, the employer
has the right to annul the employment contract with immediate effect. The
employer may claim compensation equivalent to one-quarter of a month's
wages and, where appropriate, further damages (Art. 337d 1 CO). Participants
in unlawful strikes may also be subject to criminal prosecution. Along
with individual workers, associations of workers must answer for such strikes
under the rules of the liability of associations.
Lockouts
A lockout is a countermeasure by an employer
against strike action. It is defined as preventing access by several workers
to the place of work and withholding payment of wages so as to enforce
certain financial or labour conditions. A lockout may be confined
to certain groups of workers, only strikers or non-strikers for example,
but it must not target only certain individual persons. The prerequisites
for lawfulness are largely the same as for strike action. In particular,
lockouts must conform to the principle of proportionality.
Like strikes, lockouts have the effect of
suspending the main obligations stemming from employment contracts. They
are not tantamount to the cancellation of the contracts, however. If the
lockout is illegal, the employer must continue to pay workers' wages and
indemnify any damages caused.
Official Gazette
Recueil officiel des lois fédérales
(Official Compendium of Swiss Federal Laws), Bern, Federal Chancellery,
1988-
Recueil systématique du droit fédéral (Systematic
Collection of Swiss Federal Law), Bern, Federal Chancellery,
1970-
Internet links
Information on State institutions
Systematic Collection of Swiss Federal Laws
Workers' Unions
Employers associations
ILO
Selected publications
- Berenstein, Alexandre/Mahon, Pascal, Labour Law
in Switzerland, 2nd edition, The Hague: Kluwer Law International, 2001
- Bigler-Eggenberger, Margrith/Kaufmann, Claudia, Commentaire
de la loi sur l'égalité, Lausanne: Editions Réalités sociales, 2000
- Brunner Christiane, Bühler Jean-Michel,
Waeber Jean Bernard, Bruchez Christian. Commentaire du contrat de travail (selon
le Code des obligations). 3e édition mise à jour et complétée. Réalites
Sociales. 2004
- Byrne-Sutton Pascale. Travail clandestin:
le cas de Genève. Schulthess. 2005.
- Dogan Yenisey Kübra. La modification
du contrat de travail. Etude de droit suisse et de droit français.
Schulthess. 2005
- Favre Moreillon Marianne. Droit du travail. Aspects
juridiques et pratiques. 2e édition entièrement remaniée et augmentée.
Helbing & Lichtenhahn. Bâle 2006.
Galley Marie-Josée Alex. Les juridictions du travail en Suisse.
Schulthess. 2003.
- Geiser Thomas, Kaenel Adrian von, Wyler
Rémy. Loi sur le travail
Loi fédérale du 13 mars 1964 sur le travail dans l'industrie, l'artisanat
et le comerse. Stämpfli. 2005
Karagjozi Endrit. Les transferts d'entreprises en droit du travail.
Etude comparative des droits communautaire, britannique, français et
suisse. Schulthess. 2003.
- Lempen Karine. Le harcèlement sexuel
sur le lieu de travail et la responsabilité civile de l'employeur. Le
droit suisse à la lumière de la critique juridique féministe et de l'expérience états-unienne.
Schulthess. 2006
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