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).
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).
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).
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.
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).
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).
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 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).
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.
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.
Recueil officiel des lois fédérales (Official Compendium of Swiss Federal Laws), Bern, Federal Chancellery, 1988-
Information on State institutions
- Federal Parliament
- Federal Authorities of the Swiss Confederation
- Swiss Cantons
- Federal Supreme Court
- State Secretariat for Economic Affairs
Systematic Collection of Swiss Federal Laws
- The entire body of Swiss federal labour legislation can be found at the web site of the Swiss Confederation in French, German, and Italian.
- Swiss Consitution
- Swiss Labour Law
- Civil Code (Updated July 2006)
- List of Ratifications of International Labour Conventions
- NATLEX Bibliographic database of national law
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