Replies received to the issues raised in a direct request which do not give rise to further comments (CEACR) - adopted 2023, published 112nd ILC session (2024)

Direct Request (CEACR) - adopted 2017, published 107th ILC session (2018)

Observation (CEACR) - adopted 2016, published 106th ILC session (2017)

Direct Request (CEACR) - adopted 2011, published 101st ILC session (2012)

Direct Request (CEACR) - adopted 2006, published 96th ILC session (2007)

Part VI (Employment injury benefit). The Committee notes the Government’s statement that there have been no developments in regard to the two issues raised by the Committee in its previous comments, but that these issues will be examined within the framework of the next review of the Federal Accident Insurance Act (LAA). The Committee therefore hopes that the Government will take this opportunity to:

(a)   ensure the full application of Article 32(d) of the Convention (in relation to Article 69(j)) by amending the provisions of section 29 of the LAA which makes the surviving spouse’s entitlement to benefit subject to certain conditions, in cases where the marriage is contracted after the accident which caused the decease of the insured person (subsection 2); and allows benefits to be refused or reduced when the surviving spouse has been in serious breach of his/her duties towards the children (subsection 5);

(b)   set out explicitly in national legislation the practice of the coverage by the insurer of the total cost of home nursing care provided to victims of occupational injuries at the recommendation of the physician, in accordance with Article 34, paragraphs 1 and 2, of the Convention.

Part XII (Equality of treatment of non-national residents) in relation to Part VII (Family benefit). In response to the Committee’s previous comments concerning the restrictions contained in certain cantonal family allowance schemes in respect of foreign children residing outside Switzerland, the Government indicates that, on 24 March 2006, Parliament adopted the Federal Family Benefits Act which harmonizes at national level the conditions for granting family allowances, including conditions relating to the children giving entitlement to such allowances. The Act expressly provides that, with regard to children residing abroad, whatever their nationality, the conditions for granting allowances are determined by the Federal Council. Cantonal family allowance schemes may envisage higher minimum rates than those provided for by the Federal Act, as well as a birth allowance and an adoption allowance which will also be governed by this Act. All other benefits are governed and financed outside the family allowance scheme. Given that the Federal Act does not make any distinction, in terms of nationality or the country in which their children reside, between employees entitled to family allowances, the Committee hopes that it will contribute to the harmonization of cantonal family allowance schemes on the basis of the principle of equality of treatment for non-national residents, and to the progressive elimination of the special requirements contained in the regulations of certain cantons in respect of the entitlement to allowances of foreign employees domiciled in Switzerland whose children reside abroad. In this regard, the Committee notes that, according to the Summary of cantonal family allowance schemes. Situation at 1 April 2000, submitted by the Government with its report, Swiss and foreign employees are treated equally in 18 out of 26 cantons in respect of their children residing abroad. The Government adds that 11 cantons provide the same amount of allowances per child to Switzerland and abroad, whereas 15 pay a lower amount in respect of children residing abroad; out of these 15 cantons, four make a distinction between Swiss children and foreign children, although there is no such discrimination in respect of countries that have a reciprocal agreement with Switzerland. With regard most notably to the application of Article 68, paragraph 2, which envisages, for contributory social security schemes that protect employees, including cantonal family allowance schemes, a reciprocal branch-by-branch scheme that may be subject to the existence of a bilateral agreement, the Committee notes that Switzerland is linked by reciprocal agreement to 15 countries out of the 22 countries that have accepted Part VII of the Convention, the seven remaining countries having practically no migratory movements with Switzerland.

Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

Part IV (Employment injury benefit). Article 38 of the Convention (in relation to Article 69(f)). In its previous observation, the Committee referred to the rulings of the Federal Insurance Court (TFA) of 25 August 1993 and
21 February 1994, and asked the Government to bring the national legislation, in particular section 38(2) of the Federal Accident Insurance Act (LAA), into formal conformity with the above provisions of the Convention which authorize the suspension of benefit only where the contingency has been caused by the wilful misconduct of the person concerned. The Committee notes with satisfaction the Government’s statement that section 38 of the LAA has been repealed. It is therefore no longer possible to reduce the cash benefits of survivors on grounds of serious negligence. With regard to the reduction and refusal of benefits, section 21(1) and (2) of the Act on the general part of social insurance law, which entered into force on 1 January 2003, provides that cash benefits may be reduced or refused if the insured person has aggravated the contingency insured or has wilfully provoked the occurrence of the contingency insured; the benefits due to the relatives or survivors of the insured person are only reduced or refused if these relatives or survivors have wilfully provoked the occurrence of the contingency insured.

Direct Request (CEACR) - adopted 2002, published 91st ILC session (2003)

Part VI (Employment injury benefit). (a)  Article 32(d) of the Convention (in relation to Article 69(j)). In its direct request in 1994, the Committee  drew the Government’s attention to the need to amend the provisions of section 29 of the Federal Accident Insurance Act (LAA) which makes the surviving spouse’s entitlement to benefit subject to certain conditions in cases where the marriage is contracted after the accident which caused the decease of the insured person (subsection 2); and allows benefits to be refused or reduced when the surviving spouse has been in serious breach of his/her duties towards the children (subsection 5). The Committee once again requests the Government to provide information on the measures which have been taken or are envisaged to give full effect to the above provisions of the Convention in both law and practice.

(b) Article 34, paragraphs 1 and 2. With reference to its previous comments, the Committee notes the Government’s statement that there have been no new developments regarding the practice of the coverage by the insurer of the total cost of home nursing care provided to victims of occupational injuries at the recommendation of the physician. The Committee would be grateful to be informed in due time of any measure taken to explicitly set out this practice in the national legislation.

Part XII (Equality of treatment of non-national residents), Article 68, paragraph 2. The Committee notes the information contained in the Government’s report and the comments made by the Swiss Federation of Trade Unions (USS) concerning the cantonal family allowance schemes. The Government states that non-national employees residing in Switzerland with their families have the same rights as nationals in the field of family allowances. However, the USS points out that certain cantons have adopted restrictions in their legislation respecting family allowances that are in contradiction with the principle of equality established by the Convention and which affect the children residing abroad of men and women workers who are resident and employed in Switzerland. It cites actual examples of such restrictions contained in the regulations in certain Cantons. The Committee notes in this respect that, according to the publication by the Federal Social Insurance Office entitled "Summary of cantonal family schemes. Situation at 1 April 2000" (p. 14), many laws contain special requirements respecting the entitlement of non-national employees to allowances and, in certain Cantons, also with regard to Swiss employees with children who are abroad. Non-national workers whose children live outside Switzerland are assimilated to Swiss employees only in the following Cantons: Appenzell-Outer Rhoden, Appenzell-Inner Rhoden, Fribourg, Glarus, Lucerne, Obwalden and Valais. In view of the complexity of the Swiss family allowances system, the Committee would be grateful if the Government would provide detailed information on the issues raised by the USS, accompanied by copies of the relevant cantonal regulations.

Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

Part VI (Employment injury benefit), Article 38 of the Convention (in relation to Article 69(f)). In its previous observation, the Committee noted the reversal by the Federal Insurance Court (TFA) of the case law relating to the direct applicability of the above provisions of the Convention, which authorize the suspension of benefit only where the contingency has been caused by the wilful misconduct of the person concerned. According to the rulings of the TFA of 25 August 1993 and 21 February 1994, international standards take precedence over section 7(1) of the Federal Invalidity Insurance Act (LAI) and section 37(2) of the Federal Accident Insurance Act (LAA), which permitted the reduction of cash benefits on grounds of serious negligence. The Committee had therefore requested the Government to indicate in future reports any amendments made to the national legislation with a view to bringing it into formal conformity with Article 69(f) of the Convention, for example on the occasion of the next revision of the LAA or the adoption of the Act on the general part of social insurance law.

In reply, the Government indicates in its report that, by means of an amendment of 9 October 1998, which entered into force on 1 January 1999, the LAA was brought into conformity with Article 38 of the Convention, in relation to Article 69(f). In accordance with the new wording of section 37(2) of the LAA (as it was in force on 6 April 1999) supplied by the Government, the possibility of reducing the daily benefits of insured persons in relation to an accident caused by their serious negligence is only retained in insurance for non-occupational accidents. The Committee notes with interest this amendment relating to accidents caused by the misconduct of insured persons. However, it notes that as regards the same penalty applied to the survivors of insured persons under section 38(2) of the LAA, which remains applicable to occupational accidents and diseases in addition to non-occupational accidents, the situation in law remains unchanged, since this provision still authorizes the reduction or even the refusal in particularly serious cases, of the cash benefits to a survivor where the latter has caused the death of the insured person by serious negligence.

The Committee notes in this respect, according to the information provided by the Government in its 24th annual report on the application of the European Code of Social Security, that the draft fourth revision of the LAI is currently being examined by Parliament. It also notes, from the information provided by the Government in its report for the period 1996-2001 on Convention No. 128, that the national legislation will be brought into formal conformity with the Convention following the entry into force on 6 October 2000 of the Federal Act on the general part of social insurance law (LPGA). The Committee therefore hopes that the Government will take this occasion to bring section 38(2) of the LAA, as well as section 7(2) of the LAI, into full conformity with the Convention. It requests the Government to inform it of any development which may occur in this respect.

Observation (CEACR) - adopted 1996, published 85th ILC session (1997)

With reference to its previous comments, the Committee notes the information supplied by the Government in its report as well as in the annual reports on the application of the European Social Security Code.

Part VI (Employment injury benefit). (a) Article 38 of the Convention (in relation to Article 69(f)). The Committee notes with satisfaction the reversal of the case law relating to the direct applicability of the above-mentioned provisions of the Convention by the Federal Insurance Court (TFA) in its decisions of 25 August 1993 and 21 February 1994, the texts of which have been supplied by the Government. In its decision of 25 August 1993, the TFA considered that the provisions of international instruments which stipulate that cash benefits may be withheld where the contingency has been wilfully caused by the serious misconduct of the person concerned apply directly and take precedence over section 7(1) of the Federal Invalidity Insurance Act (LAI) in that this standard of federal law provides, in particular, for the reduction of benefits for serious misconduct committed by negligence. In a later decision of 21 February 1994, the TFA confirmed this case law by specifying that standards of international law also take precedence over section 37(2) of the Federal Accident Insurance Act (LAA), which provides for the reduction of cash benefits for invalidity if the insured person has caused the accident by serious negligence. Consequently, the Government concludes in its report that contrary to the provisions of the law, negligence, even when serious, is no longer sufficient ground for the reduction of benefits in the event of occupational accident or disease. The Committee also noted with interest the Government's statement made in regard to the European Social Security Code to the effect that, in the light of this new case law, the competent insurance bodies henceforth apply the provisions of the LAI and the LAA taking account of the relevant international standards. The Committee requests the Government to indicate in its next reports any amendments made to national legislation with a view to bringing it into full conformity with Article 69(f) of the Convention, for example, on the occasion of the next revision of the LAA or the adoption of the Act on the general part of social insurance law.

(b) In regard to its previous comments concerning Article 34, paragraphs 1 and 2, of the Convention, the Committee notes with interest Recommendations No. 7/90 of the ad hoc commission, accidents LAA, for the application of the LAA and the OLAA (Ordinance on Accident Insurance) relating to home nursing care, supplied by the Government in the framework of the Code and further to a decision of 9 January 1990 of the Federal Insurance Court. These Recommendations state that costs arising from medical care similar to that provided by nurses must be covered by the insurer if the physician considers that this "home nursing care" is necessary. The Government confirms in its report that, in practice, the insurers cover the total cost of such care. The Committee therefore notes, given the absence of any participation by the victims of occupational injury in the cost of nursing care at home, as the Government indicates, that the situation prevailing in Switzerland is in conformity with Article 34 of the Convention. It requests the Government to indicate in its future reports any development which may arise in this regard, in both legislation and practice.

Direct Request (CEACR) - adopted 1994, published 81st ILC session (1994)

Part VI (Employment injury benefit), Article 32(d) of the Convention (in relation also to Article 69(j)). In its previous comments, the Committee asked the Government to provide examples of the application in practice of the provisions of section 29 of the Federal Accident Insurance Act (LAA) which makes the surviving spouse's entitlement to benefit subject to certain conditions when the marriage was contracted after the accident which caused the decease of the insured person (subsection 2); and allows benefits to be refused or reduced when the surviving spouse has been in serious breach of his or her duties towards the children (subsection 5). In its report, the Government confirms that, to its knowledge, there is no case law concerning the application of the provisions of section 29(2) and (5) of the Act. It adds that, at present, existing doctrine has it that insurers must resort sparingly to the penalty provided for in section 29(5) of the above Act, because it is not for them to set themselves up as censors in such a sensitive area. The Government also indicates that this provision is to be amended not in the context of the future legislation on the general part of social insurance law, but when the LAA is amended. The Committee takes note of this information. It hopes that, in a future review of the Federal Accident Insurance Act for example, the necessary measures will be taken to ensure that full effect is given to these provisions of the Convention. It again asks the Government to provide information on the matter in its future reports, should there be any change in the situation either in law or in practice.

Observation (CEACR) - adopted 1994, published 81st ILC session (1994)

The Committee notes the information supplied by the Government in its report. It also notes the discussions at the Conference Committee in 1993 in the context of Convention No. 128.

Part VI (Employment injury benefit)

1. Article 38 of the Convention (in relation to Article 69(f)). In its previous comments the Committee raised the question of the compatibility with the above-mentioned provisions of the Convention of section 37(2) and section 38(2) of the Federal Accident Insurance Act of 20 March 1981 (LAA), which allows the cash benefits due to victims of occupational accidents or their survivors (in the case of the latter, the benefits may even be refused) to be reduced in the event of serious negligence on the part of the persons concerned. As the Committee pointed out in its previous comments, Article 69(f) of the Convention allows suspension of benefits only when the contingency has been caused by wilful misconduct on the part of the person concerned. It therefore asked the Government to provide information on any developments concerning the Federal Bill on the general part of social insurance law which, according to the Government, was to take full account of the above-mentioned provisions of the Convention.

After stating in its report that it still had no knowledge of any case law concerning the reduction of employment injury benefits for serious negligence, the Government goes on to indicate that the parliamentary debate on the above Bill has been suspended. It emphasizes that the Bill was initiated in Parliament since it was formulated by the Committee of the States Council. The Bill has already been approved by the States Council. The National Council has asked for further time to examine the matter. The question at issue is whether it would not be more appropriate, at a time when numerous specific laws on social security are being revised, to draft a law to harmonize them which would be less complicated than the current Bill concerning the general part of social insurance. The Government adds that, in any event, the issue is now in the hands of Parliament and there is no question but that the LAA will be brought into conformity with the Convention by one type of law or another.

The Committee takes note of this information. It hopes that the parliamentary debates on the issue will be pursued and will lead in the near future to the adoption of a text which takes full account of the above-mentioned provisions of the Convention.

2. Article 34, paragraphs 1 and 2. In its previous comments the Committee referred to section 10(3) of the above-mentioned Federal Accident Insurance Act (providing that the Federal Council may set the requirements for entitlement to home care, and the extent to which such care is covered by insurance), and section 18 of the Ordinance of 20 December 1982 (providing that the insurance covers only a part of the costs arising out of home care, prescribed by a physician and provided by an authorized person). It therefore asked the Government to take the necessary steps to provide expressly in the legislation that victims of occupational accidents shall not participate in the costs of nursing care at home, in accordance with the Convention. Since in its report the Government confirms that the insurers cover all costs arising from such care and that the tariff agreement with nursing personnel which was to fix the contribution of insured persons to home care costs will not be concluded in the immediate future, the Committee can but reiterate the hope that the necessary measures will be taken to ensure that Swiss practice in this respect is given statutory effect.

Direct Request (CEACR) - adopted 1993, published 80th ILC session (1993)

Part VI of the Convention (Employment injury benefit).

Article 32(d) (in conjunction also with Article 69(j). In its previous comments, the Committee also requested the Government to provide examples of the application in practice of the provisions of section 29 of the Federal Accident Insurance Act of 20 March 1981 which: makes the right of the surviving spouse to a pension, where marriage was contracted after the date of the accident causing death, subject to certain conditions (subsection 2); and authorizes the refusal or reduction of benefits when the surviving spouse has seriously failed in his or her duties towards the children (subsection 5). In its report, the Government states that to its knowledge there is no case law relating to the application of the provisions of section 29(2) and (5). Furthermore, it states that use is no longer made in practice of the possibility set out in section 29(5). The Committee takes due note of this information. It hopes that the draft Federal Act on the general part of Swiss social insurance law, when it is adopted, will take fully into account the above provisions of the Convention. It would be grateful if the Government would continue to supply information on this matter in future reports in the event of any change in the situation in law or in practice.

Observation (CEACR) - adopted 1993, published 80th ILC session (1993)

Part VI of the Convention (Employment injury benefit)

1. Article 38 (in conjunction with Article 69(f)). In its previous comments, the Committee raised the question of the compatibility with the Convention of section 37(2) and section 38(2) of the Federal Accident Insurance Act (LAA of 20 March 1981) which provide for the reduction of the cash benefits due to employment injury victims or their survivors (in the case of the latter, such benefits may even be refused) where the contingency has been caused by gross negligence on the part of the person concerned. Indeed, as the Committee has already emphasized, the suspension of benefits is only authorized under the terms of Article 69(f) of the Convention where the contingency has been caused by the wilful misconduct of the person concerned.

In its reply, the Government states that in the draft Federal Act on the general part of Swiss social insurance law, which was prepared by the Commission of the Council of the States on the basis of a draft elaborated by the Swiss Insurance Law Society and which is currently under examination, it is envisaged that the reduction of benefits in the event of gross negligence on the part of the person concerned will be eliminated. It adds, however, that the Federal Council has before it a number of priorities, including the tenth revision of the Old-Age and Survivors' Insurance Act, the revision of the Sickness Insurance Act and the Occupational Pensions Act, and the examination of the relationship between the compulsory basic pension scheme and the compulsory occupational pension scheme. In these circumstances, the Federal Council, although it generally approves the draft legislation proposed by the Commission of the Council of the States, wishes the work of revising the above Acts be completed before Parliament debates the new draft legislation. The Committee notes this information. In this context, the Committee also notes the comments made by the Swiss Federation of Trade Unions (USS) transmitted by the Government on 12 February 1993. According to the USS, the Federal Council issued an opinion with reservations concerning the above draft legislation and invited the Parliament to suspend its work. Although aware of the priorities facing the Government, the Committee once again hopes that the draft Federal Act on the general part of Swiss social insurance law will be adopted in the near future and that it will take fully into account the above provisions of the Convention, which have been the subject of the Committee's comments for many years. It would be grateful if the Government would supply information in its next report on any development in this respect.

2. Article 34, paragraphs 1 and 2. In reply to the Committee's previous comments concerning section 10(3) of the above-mentioned Federal Accident Insurance Act (which provides that the Federal Council may establish the conditions under which the insured person is entitled to care at home, and the extent to which such care is covered by the insurance), and to section 18 of the Ordinance of 20 December 1982 (which provides that the insurance covers only a part of the expenses resulting from care at home prescribed by a medical practitioner and provided by an authorized person), the Government states that this care consists in practice of nursing care and that in practice insurers cover the whole expense of such care. It adds that the fee agreement with the providers of such care, which was to establish the contribution payable by insured persons to the cost of care provided at home, has still not been concluded, mainly due to the absence of a central association representing nursing personnel, which makes it uncertain that section 70(1) of the above Ordinance is applied. According to the Government, the situation which prevails in practice in Switzerland is therefore in accordance with Article 34 of the Convention. The Committee notes this information. It therefore hopes that the Government will have no difficulty in setting out this practice in legislation by providing explicitly that there shall be no contribution by the victims of employment injuries to the cost of nursing care at home, in accordance with the Convention.

[The Government is asked to report in detail for the period ending 30 June 1993.]

Direct Request (CEACR) - adopted 1989, published 76th ILC session (1989)

Part VI of the Convention (Employment injury benefit). Part VI of the Convention (Employment injury benefit). 1. Article 38 (in conjunction with Article 69 (f)). In its previous comments, the Committee raised the question of the compatibility with the Convention of section 37, subsection 2, and section 38, subsection 2 of the new Federal Accident Insurance Act (LAA of 20 March 1981) which provide for the reduction of the cash benefits due to employment injury victims or their survivors (in the case of the latter, such benefits may even be refused) where the contingency has been caused by gross negligence on the part of the person concerned. Since the above-mentioned provisions of the Convention prescribe that the benefits may only be suspended where the contingency has been caused by the wilful misconduct of the person concerned, the Committee requested the Government to provide information on the application of the above provisions of the Federal Act in practice, showing that, in the case of industrial accidents, the reduction or refusal of benefits is confined to cases where the "gross negligence" is wilful.

In reply to these comments, the Government transmitted with its report two judgements of the Federal Insurance Tribunal, concerning the reduction of benefits for "gross negligence" in road accident cases and states that it has been unable to provide information on the application, in practice, of section 37, subsection 2 and section 38, subsection 2 of the above-mentioned Act, in respect of occupational accidents. However, it indicates that the reduction of benefits under these sections is also applicable in the case of occupational accidents. Furthermore, it refers to the reply given by the Federal Council on 1 June 1987 to certain questions raised by two parliamentarians concerning the need to amend the above-mentioned provisions in order to bring them into line with Switzerland's international commitments. In its reply, with which the Committee became familiar at its 1988 Session when application of the European Code of Social Security by Switzerland was examined, the Federal Council stated that it wished to wait until the question of the reduction of benefits due to serious misconduct of the person concerned was examined in the context of the study on a "general part of Swiss social insurance law". According to the information on the European Code of Social Security, provided at the time by the Government, the matter was already being studied by a working group which was to make recommendations to the Council of States, in particular concerning these reductions, and information on the progress of its work would be transmitted to the Committee. Since the Government's last report on the Convention contains no information on any developments in this area, the Committee can only hope that the necessary measures will be taken to bring the national legislation into full conformity with the provisions of the Convention on this point.

2. Article 34, paragraphs 1 and 2. In its comments, the Committee also referred to section 10, subsection 3 of the above-mentioned Federal Accident Insurance Act (which provides that the Federal Council may establish the conditions under which the insured person is entitled to care at home, and the extent to which such care is covered by the insurance), and to section 18 of the Ordinance of 1982 issued under this Act (which provides that the insurance covers only a part of the expenses resulting from care at home prescribed by a medical practitioner and provided by an authorised person). It therefore requested the Government to indicate whether the above-mentioned provisions which appear to prescribe that the insured person shares in the cost of medical care, apply also to the victims of employment injuries, which would be contrary to the Convention which provides for free medical care in such cases. In reply, the Government states that the care in question is nursing care and that the contribution to fees for care at home is to be fixed by a fee agreement. It adds that no agreement of this kind has yet been concluded but that, in practice, the insurer pays the total cost of these fees and that, consequently, there is no contribution by the insured person. The Committee takes due note of this statement and hopes that a fee agreement may be concluded shortly to give formal recognition to this practice, particularly with respect to employment accident victims.

3. Article 32(d) (in connection also with Article 69(j)). The Committee requested the Government to provide examples of the application, in practice, of the provisions of section 29 of the Federal Accident Insurance Act which: (a) makes the right of the surviving spouse to a pension (where marriage was contracted after the date of the accident causing death) subject to the condition that the promise of marriage had been made public before the accident, or that the marriage had lasted at least two years at the time of the death of the insured person; and (b) authorises the refusal or reduction of benefits when the surviving spouse has seriously failed in his or her duties towards the children. In its last report, the Government states that to date, there have been no cases where the provisions of the above-mentioned section have been applied in practice, but that it will not fail to provide information on any developments that might occur in this respect. The Committee takes note of this statement and hopes that the Government will keep the Office of any such developments.