Demande directe (CEACR) - adoptée 2019, publiée 109ème session CIT (2021)

Convention (n° 189) sur les travailleuses et travailleurs domestiques, 2011 - Suisse (Ratification: 2014)

Autre commentaire sur C189

Demande directe

2021
2019
2017

Afficher en : Francais - EspagnolTout voir

The Committee notes the observations of the Swiss Union of Agricultural Workers (USP), received on 31 August 2018. The Committee requests the Government to provide its comments in this regard.

Articles 1 and 2 of the Convention. Definitions and exclusions. The Committee previously asked the Government to provide further information on the exclusions indicated in its first report, as well as information on the consultations held with the social partners concerning these exclusions – namely, with regard to: (i) domestic workers who work in a private household; and (ii) domestic workers in agricultural households (section 2(1)(g) of the Labour Act (LTr)) – and to specify all the measures adopted or envisaged to extend the application of the Convention to these workers. The Committee notes the Government’s indication that the Federal Council, in its communication ratifying the Convention, stated that Switzerland might avail itself, if necessary, of the possibility of excluding limited categories of domestic workers at the time of submitting its first report on the application of the Convention. The Government stated in its first report that domestic workers who are not subject to the Labour Act are excluded in accordance with the terms of Article 2 of the Convention. In this regard, the Committee notes that, during consultations in 2016, five possibilities of regulation were envisaged, including domestic workers being subject to the Labour Act, but the latter option was not adopted. However, the Government indicates that, further to the Federal Council Decision of 21 June 2017, a standard employment contract (CTT 24/24) was drawn up in 2018, in partnership with the cantons and in consultation with the representative workers’ and employers’ organizations, in order to define minimum Swiss standards governing conditions of work for workers in the domestic economy and providing such workers with 24-hours-a-day coverage. In this regard, the Government indicates that the exclusion of domestic workers from the Labour Act is countered by the protection afforded in other legislation, as well as by the standard employment contract for the domestic economy (CTT économie domestique) together with cantonal standard employment contracts (CTT cantonaux) and the new CTT 24/24. However, the Committee notes that the rights afforded by certain provisions of the standard employment contracts concerning matters such as weekly rest, normal working hours or holidays, may be waived in writing, to the detriment of the worker. The Committee recalls that the main objective of the Convention is to recognize domestic workers as ordinary workers, and to extend to them rights that are equivalent to those enjoyed by other categories of workers. With respect to domestic workers in agricultural households, the Committee notes the observations of the USP, who states that appropriate conditions of work for domestic workers in agriculture are guaranteed by cantonal standard contracts (section 359 et seq. of the Code of Obligations (CO)) and by a wage directive negotiated between the social partners covering all key points of employment relationships, taking account of the specific needs in agriculture. The USP also observes that the scope of the Labour Act should not be extended to agriculture or allied occupations. With respect to the exclusion of domestic workers from the scope of the Convention, the Committee notes that generally applicable laws, such as the CO, the Code of Civil Procedure (CPC), the Penal Code (CP), and specific regulations, such as the Ordinance on private domestic workers (ODPr), which applies to domestic workers employed by diplomatic officials, the CTT cantonaux and the CTT 24/24, play a role in the protection of domestic workers. Nevertheless, given the particular characteristics of domestic work, which include isolation, dependency on the employer, lack of representation and intermediation through private employment agencies, it is crucial that domestic workers are able to know their rights so that they may effectively exercise them. When the provisions protecting domestic workers are dispersed across multiple laws and regulations, this is made more difficult in practice. It is therefore important that they are afforded with integrated, transparent and effective protection, equivalent to that enjoyed by other workers, by the inclusion of such protections in a general law or in a specific legislation. The Committee also notes the Government’s indication that Switzerland has not excluded from the scope of the Convention the domestic workers of persons who enjoy privileges and immunities, within the meaning of the ODPr. The Committee therefore requests the Government to indicate the measures taken or envisaged to guarantee that domestic workers in private households enjoy all the forms of protection provided for in the Convention.

Article 3. Freedom of association and collective bargaining. The Committee previously asked the Government to provide specific information on the measures adopted or envisaged to ensure that domestic workers enjoy fully all the fundamental rights at work set out in this Article of the Convention, including freedom of association and the effective recognition of the right to collective bargaining. The Government indicates that innovative solutions have been put in place by the authorities to address issues of representativeness during negotiations for collective bargaining and thereby ensure the effective exercise of these fundamental rights at work. It also indicates that the tripartite stakeholders are involved in the implementation of support measures. The Government indicates that rights deriving from freedom of association or those resulting from the federal standard contract on minimum wages and the cantonal standard contracts, and also general rules on protection established by employment contract law, apply to any employment contract, including those that bind domestic workers. In this regard, the Government reiterates that the absence of employers’ organizations and trade unions for domestic workers is offset in Switzerland by the obligation to issue standard cantonal contracts (section 359(2), CO). The Committee requests the Government to provide further information on the nature and impact of the innovative solutions which have been put in place by the authorities to address issues of the representativeness of workers in the domestic sector during negotiations for collective agreements. The Committee also requests the Government to indicate the measures taken or envisaged to reinforce the capacity of workers’ and employers’ organizations, organizations representing domestic workers and domestic worker employers’ organizations to effectively promote the interests of their members with regard to the domestic work sector.

Article 5. Effective protection against all forms of abuse, harassment and violence. The Committee previously asked the Government to indicate the measures adopted or envisaged to protect men and women domestic workers against all forms of abuse, harassment and violence, for example through the establishment of accessible and effective complaint mechanisms for the protection of these workers. It also asked the Government to indicate whether courts or other tribunals have handed down decisions on this subject and, if so, to provide copies. The Government indicates that men and women domestic workers are covered by general rules on protection established by employment contract law, and also the provisions of the CPC establishing a conciliation procedure (section 113(2)(d) CPC), and a substantive procedure, simple and free of charge, for cases having a litigious value of up to 30,000 Swiss francs (section 114(c) CPC). In addition, men and women domestic workers who are victims of serious forms of abuse or harassment are entitled to support under the Federal Act on assistance for victims of offences (LAVI, RS 312.5). Moreover, serious offences (sexual abuse, physical injury, endangering another person’s life, threats, etc.) may come within the scope of criminal law. The Government also indicates that statistics on assistance for victims in Switzerland record the cases in which compensation or moral damages have been awarded, but not specifically in cases of abuse, harassment or violence suffered by men and women domestic workers. The Committee notes that since 2011 some 20 judgments handed down by cantonal courts of second instance have awarded moral damages (between 0 and 5,500 Swiss francs) to men and women domestic workers who have been victims of attacks on their physical, psychological or sexual integrity. The Government indicates that legal proceedings are brought in Switzerland against any person who exploits domestic workers. In this regard, the Committee notes the Federal Court decision of 7 February 2018 on trafficking in persons and the exploitation of domestic workers in Switzerland. The Committee requests the Government to provide information on the scope of the efforts under way and on the nature and content of proceedings in Switzerland brought against persons who exploit domestic workers. The Committee requests the Government to continue providing information on any relevant administrative or judicial decisions.

Article 6. Fair terms of employment, decent working conditions and decent living conditions. The Committee previously asked the Government to indicate the measures taken to ensure that domestic workers enjoy fair terms of employment, decent working conditions and, if they reside in the household, decent living conditions that respect their privacy, and the manner in which these measures are applied in practice. The Government indicates that, with the adoption of the new CTT 24/24, the Federal Council has taken account of trade union demands by defining the minimum Swiss standards on conditions of work with 24-hour-a-day coverage. The Committee notes that the aforementioned standard employment contract provides details of conditions of work and hours of work, presence and rest, and describes the conditions in which men or women workers living under the same roof as the assisted person are entitled to adequate, wholesome food; an individual bedroom that meets requirements of hygiene and comfort (well-lit, heated and ventilated, adequately furnished and spacious); the right to unrestricted use of shared sanitary facilities, the laundry room and, possibly, the internet under conditions that respect the privacy of the worker concerned. Noting that domestic workers do not come under the protection of the Labour Act and that labour inspectors are not allowed to inspect private households in Switzerland, the Committee requests the Government to indicate the manner in which it ensures the application in practice of the minimum Swiss standards on conditions of work with 24-hour-a-day coverage for domestic workers – including migrant domestic workers – employed in private households.

Article 7. Information on terms and conditions of employment. The Committee previously asked the Government to indicate the measures adopted or envisaged to ensure that all domestic workers are informed of their terms and conditions of employment, particularly with regard to the elements set out in this Article of the Convention, in an appropriate, verifiable and easily understandable manner. The Government indicates that, even though the domestic employment contract may be concluded orally, employers are recommended to establish the contract in writing, for reasons of clarity and because some provisions of employment contract law can only be dispensed with through written agreement. According to the new CTT 24/24, it should be pointed out that a copy of the cantonal employment contract and of the individual employment contract must be given to the worker at the start of the employment relationship. Documents relating to hours of work must be stamped every week by the parties to the contract. Furthermore, the Secretariat of State to the Economy (SECO) makes information sheets available on its website for employers and workers in the domestic economy and for companies dealing with service hire and job placement. Organizations responsible for supporting domestic workers also have information and carry out awareness-raising among their members. The Committee requests the Government to continue providing up-to-date information on the steps taken to ensure that domestic workers, including migrant domestic workers, are informed of their terms and conditions of employment in an appropriate, verifiable and easily understandable manner.

Article 8(3). Migrant domestic workers. The Committee previously asked the Government to provide information on any measures adopted or envisaged in cooperation with other member States to ensure the effective application of the provisions of this Convention to all migrant domestic workers. The Government indicates that the employment contract for persons of foreign origin must be concluded in writing and respect the provisions of the Ordinance on the CTT économie domestique, which provides for a minimum wage, and must be submitted with a permit application in a language that the domestic worker understands (English or another language). Moreover, specific protection measures provided for by the ODPr (employment contract drawn up according to the Federal Department of Foreign Affairs (DFAE) model, meetings with workers, etc.) apply in this regard. The Government also indicates that in practice the employment contracts of persons originating from third countries contain a specific provision that the employer is obliged to organize the worker’s return journey at the end of the employment relationship. The Committee notes with interest that, with regard to the coordination of national social security schemes (Article 14 of the Convention), Switzerland has concluded international social security agreements with 48 States to ensure equal treatment for Swiss citizens and citizens of the country concerned, thereby covering about 81 per cent of foreign workers resident in Switzerland. Furthermore, as regards workers who have no work permit or official residence, the Government indicates that these workers are protected, regardless of their permit status, by the Federal Act on unlawful work (LTN), and by other general provisions. The Committee requests the Government to continue providing information on the measures taken to ensure the effective application of Article 8 of the Convention, including on measures taken or contemplated to protect the rights of migrant domestic workers under national laws and regulations, bilateral, multilateral and regional agreements, or other provisions.

Article 11. Minimum wage. The Committee previously asked the Government to provide information on the differences between the minimum wage of domestic workers and of the domestic workers of diplomats, and on the measures taken to determine and review the minimum wage for domestic work. The Government indicates that the minimum wage for domestic work is reviewed regularly in relation to the national CTT. The Committee notes that further to the extension of the Ordinance on the CTT économie domestique, gross minimum wages have been raised by 1.9 per cent, which corresponds to changes in the nominal wage between 2013 and 2015 in Switzerland. As regards the domestic workers of diplomats, the Government reiterates that their net monthly minimum wage is 1,200 Swiss francs. It also indicates that domestic workers of diplomats who prefer to “live out” are entitled to a fair housing allowance, paid by the employer. This must be calculated using the same methods as for other domestic workers in Switzerland, namely, with a minimum amount set according to the scales established by the Regulations of 31 October 1947 on old-age and survivors’ insurance (RAVS) to fix wages taking account of old-age and survivors’ insurance. The employer must also bear the cost of all employer/employee social contributions and health and accident insurance premiums. The Committee requests the Government to provide up-to-date information on the number of complaints submitted in the domestic work sector for non-compliance with minimum wage rates, and on the outcome of these complaints.

Article 15. Fees charged by employment agencies. The Committee previously asked the Government to indicate the measures taken or contemplated to give full effect to Article 15(1)(e). The Government indicates that the payment of enrolment, commission and, possibly, compensation fees for services is the subject of a special written arrangement in the employment contract between the jobseeker (in this case, the domestic worker) and the private employment agency, in accordance with sections 8 and 9 of the Federal Act on employment and service hire (LSE). It also indicates that in practice fees charged by private employment agencies are never deducted from the worker’s pay and no deductions may be made by the employer from the worker’s pay. The Committee requests the Government to indicate the measures taken or contemplated to ensure that fees charged by private employment agencies are not deducted directly or indirectly from the remuneration of domestic workers. The Committee also requests the Government to indicate the measures taken or contemplated to ensure that adequate machinery and procedures exist for the investigation of complaints, alleged abuses and fraudulent practices concerning the activities of private employment agencies in relation to domestic workers.

Article 17. Complaint mechanisms. Labour inspection. Recalling the particular vulnerability of domestic workers, the Committee previously asked the Government to indicate the measures adopted or envisaged to establish effective and accessible complaint mechanisms, including for migrant domestic workers, and the means of ensuring compliance with national laws and regulations for the protection of domestic workers. The Government indicates that general protection rules of employment contract law apply to domestic workers, as do regulations on general procedures, guaranteeing access to the highest levels of the justice system. The Committee notes that, in the context of cases relating to the domestic economy, the Federal Court granted moral damages for injury to personal dignity to a worker in a case concerning very low pay, excessive working hours without any freedom to decide the place of residence, and with no free time or rest periods (Federal Court ruling 4P.32/2004 of 23 April 2004). The Committee further notes that the Federal Court also detected a violation of the duty of assistance and awarded compensation to a domestic worker who was seriously injured in the performance of work and is now an invalid. In this regard, the Committee refers to its comments on the application of the Forced Labour Convention, 1930 (No. 29), and the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), in which it has been recalling for years that effective and accessible complaint mechanisms are necessary to enable domestic workers, including migrant domestic workers, to obtain relief. In addition, it stresses the importance of awareness-raising mechanisms to enable domestic workers to know their rights and how to ensure that these rights are respected. The Committee requests the Government to provide information on the existence of mechanisms available to domestic workers, such as free legal advice, so that they can be informed of administrative and judicial remedies available to them. The Committee also requests the Government to indicate the measures taken or contemplated to establish complaint and monitoring mechanisms in order to ensure observance of the national legislation relating to the protection of domestic workers, particularly measures relating to labour inspection. The Committee reminds the Government of the need to strengthen controls by the labour inspectorate and to impose administrative and criminal penalties that act as a deterrent.

Article 18. Implementation of the provisions of the Convention. The Committee previously asked the Government to provide information on the consultations held with the most representative organizations of employers and workers with a view to implementing the provisions of the Convention by extending or adapting existing measures relating to domestic workers, or by developing specific measures instead. The Government indicates that since 2016 consultations and hearings have taken place to develop new rules concerning 24 hour-a-day assistance for senior citizens (through consultations and an online questionnaire in September 2016 and through discussions within the Federal Labour Commission on 15 November 2016). While welcoming the measures taken by the Government to provide a degree of protection for domestic workers excluded from the scope of the Labour Act, the Committee notes the non-exhaustive list of laws and regulations designed to compensate for the exclusion of domestic workers from the scope of the labour legislation, which includes the following: CO; CP; CPC; Labour Act and its implementing ordinances; Domestic Work Act; LSE; Federal Act on posted workers; LTN; Federal Gender Equality Act; CTT économie domestique; CTT 24/24; CTT cantonaux; and ODPr. In this context, the Committee wishes to emphasize that the general objective of the Convention is to ensure that domestic workers have equality in terms of protection of their labour rights. In this regard, standard employment contracts signify major progress and the adoption thereof can supplement the labour legislation. However, they cannot replace the latter without direct monitoring measures. The application and observance of standard contracts may be compromised, either because domestic workers are not sufficiently informed of their rights and obligations as set out in the various legal texts listed above, or because provisions have been established that allow some provisions of these standard contracts to be modified. The Committee therefore considers it necessary to ensure the inclusion of domestic workers in an effective general or specific law which can give them integrated protection, providing for monitoring systems, accessible complaint mechanisms, and remedies and penalties which go beyond the necessarily limited scope of a standard contract. Considering the particular conditions of domestic work, the Committee requests the Government to provide information in its next report on consultations held with the most representative employers’ and workers’ organizations in order to examine the possibility of extending the scope of application of the Labour Act or of adopting a specific law that would apply to domestic workers in private households.

Application of the Convention in practice. The Committee notes the indication of the Federal Statistics Office (OFS) that, as at the first quarter of 2018, Switzerland had approximately 61,000 households employing domestic workers, which is below the average of 64,000 households recorded in 2017. It also notes that no court ruling has been handed down relating to questions of principle regarding the application of the Convention. The Committee requests the Government to continue providing up-to-date information on any judicial or administrative ruling relating to the application of the Convention.