Rapport définitif - Rapport No. 34, 1960

1. 4. By a communication dated 8 November 1955, the Federation of Christian Trade Unions (Geneva) submitted a complaint to the I.L.O containing allegations of infringements of the exercise of trade union rights in Switzerland. The complaining organisation furnished further information in substantiation of its allegations by a letter dated 14 December 1955.
2. 5. The Swiss Government, to which the aforesaid communications were transmitted by the Director-General, forwarded preliminary observations and information by letters dated 14 January and 26 May 1956 and 9 January and 2 October 1957.
3. 6. As these communications revealed that the matters in issue in the case were the subject of proceedings before the domestic courts and arbitration tribunals, the Committee, in accordance with its normal practice, decided, at its 14th, 15th, 16th, 17th, 18th, 19th and 20th Sessions, to adjourn its examination of the case until it had information as to the outcome of the pending proceedings.
4. 7. By a communication dated 22 November 1958, the Swiss Government forwarded to the Director-General the text of one of the judgments awaited by the Committee, which was rendered on 14 July 1958.
5. 8. In a communication dated 10 February 1959, the complaining organisation declared that it was withdrawing its complaint.

A. A. The complainants' allegations

1. 9. In its complaint dated 8 November 1955, supplemented by a communication of 14 December of the same year, the complaining organisation, acting in agreement with the Swiss Printing Workers' Union, declares that three Swiss-German printers, Messrs. B. Jaggi, L. Schutz and P. Naef, were engaged by three printing firms in Geneva in 1955. All three were members of the Swiss Printing Workers' Union, which they considered to correspond with their trade union convictions. It is alleged that, because they did not join the Swiss Typographical Federation, the latter exerted such pressure on the employers of Messrs. Jaggi and Schutz-including threats of strike action-that they felt themselves obliged to dismiss these employees. In the case of Mr. Naef, the pressure exercised is alleged to have resulted in causing him to join the Swiss Typographical Federation in order to retain his employment.
2. 10. The complainants declare that both the Swiss Printing Workers' Union and the Swiss Typographical Federation are bound by a collective agreement to guarantee reciprocally the free exercise of the right of association ; they allege that, by taking the action which it did, the Swiss Typographical Federation violated both the right of free association and the agreement to which it was a party. Further, the complainants allege that the Swiss Typographical Federation has violated several of the provisions of the national Constitution : that the attitude which it adopted constituted an attempt to reduce the three workers in question to the position of " subjects ", which is contrary to article 4 of the Constitution ; that the loss of their employment forced the workers to leave Geneva, which is contrary to article 45 guaranteeing the right to settle anywhere in Swiss territory ; that the exercise of pressure in order to force them to join the Federation was contrary to article 49 guaranteeing to each his liberty of conscience ; finally, that the Federation violated article 56 of the Constitution, which provides for the right of citizens to form associations in freedom. The complainants allege that the principles enunciated in the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), are not respected in Switzerland.
3. 11. In conclusion, the complaining organisation declares that Messrs. Jaggi and Schutz instituted proceedings in the Geneva courts against the Geneva branch of the Swiss Typographical Federation and the employers who dismissed them.
4. 12. In its reply dated 14 January 1956, the Swiss Government declares that, although it has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), it supports entirely the principles contained in the Conventions.
5. 13. The Government goes on to state that article 56 of the Constitution guarantees the right of association but regulates only relations between the individual and the State and not those between associations or between individuals. The State is not bound to ensure protection for every individual against restrictions which may be imposed on his right of association by third parties. The Government points out that the Penal Code may be invoked in cases in which there is manifest constraint and only in such cases ; hence, in the view of the Government, the penal provisions alone are not sufficient to guarantee the free exercise of the right to organise. Observing that civil proceedings were instituted by two of the persons concerned, the Government declares that it sees neither reason nor possibility for it to intervene in the affair. It points out, nevertheless, in conclusion that on several occasions in the past the civil courts have laid down that rights of personality must be respected even in the trade union sphere.
6. 14. In a later communication dated 26 May 1956, the Government states that the Swiss Society of Master Printers, a signatory of the relevant collective agreement, instituted proceedings for violation of freedom of association against the Swiss Typographical Federation, a signatory of the agreement on the workers' side, before the arbitration tribunal prescribed in the collective agreement.
7. 15. In the same communication, the Swiss Government suggests that the Committee on Freedom of Association should adjourn its examination of the case until the outcome of the pending proceedings should become known. It was in accordance with this wish and also with its normal practice that the Committee, at successive sessions, adjourned the formulation of its conclusions until it had received the text of the pending judgments.
8. 16. By a letter dated 9 January 1957, the Government communicated the text of judgments of various civil courts relating to a case which is entirely analogous to those involved in the matter now before the Committee, indicating that the civil courts concerned in the cases affecting Messrs. Schutz and Jaggi would no doubt take notice of these judgments. According to the terms of the judgments given by a Court of First Instance and by the Federal Court, the fact that a trade union organisation has caused an employer to dismiss an employee because he is not a member of the said organisation is declared to be illegal and to entitle the person prejudiced to compensation.
9. 17. Finally, by a communication dated 22 November 1958, the Government transmitted the text of the arbitration award made in the case of Mr. Schutz by the joint arbitration tribunal for the Swiss printing industry in the action in respect of alleged violation of freedom of association brought by the Swiss Society of Master Printers against the Swiss Typographical Federation. It would appear from this award that the Swiss Typographical Federation had no right to act as it did, and it is, therefore, ordered to pay 300 francs nominal damages to the Swiss Society of Master Printers.
10. 18. By a communication dated 10 February 1959, the Federation of Christian Trade Unions (Geneva) indicates that the two organisations directly concerned in the matter, the Swiss Typographical Federation and the Swiss Printing Workers' Union, have signed two agreements, copies of which the complainants annex to their communication. These agreements, declare the complainants, set forth for the first time the principle of recognised equality of rights as between trade unions with majority and minority memberships. Moreover, in order to guarantee freedom of association and freedom to work throughout Swiss territory, they establish an arbitration tribunal which will deal with any disputes that may arise with respect to either of these two freedoms. The Federation of Christian Trade Unions declares, therefore, that the complaint which it submitted has now become purposeless and adds that its contents should henceforth be regarded as submitted simply for information.
11. 19. It is clear from the facts set forth above that the question now before the Committee is essentially a question related to the problem of union security. In several earlier cases, the Committee has taken the view that it is not called upon to deal with union security arrangements or inter-union disputes over the issue of union security ; in reaching this conclusion, the Committee was guided by the fact that the Committee on Industrial Relations set up by the International Labour Conference expressed the view, in its report to the 32nd Session of the Conference in 1949-accepted by the Conference when it adopted that report-that the Right to Organise and Collective Bargaining Convention, 1949 (No. 98) " could in no way be interpreted as authorising or prohibiting union security arrangements, such questions being matters for regulation in accordance with national practice ".H According to this interpretation countries -and especially those having trade union pluralism-would in no way be bound under the provisions of the Convention to permit union security clauses either by law or as a matter of custom, while other countries which allow such clauses would not be placed in the position of being unable to ratify the Convention.
12. 20. With respect to the question whether the manner in which it is alleged that a union security clause has been applied is contrary to a national collective agreement and to national legislation-in particular, with regard to the provisions of the Swiss Constitution-the Swiss Government declares that in its view there has been no violation of the Constitution which would justify application of penal provisions. The question as to what other legal text might be invoked and as to what rights, the violation of which might be punished, derive from the collective agreement mentioned earlier is a matter for the courts, before which an action can be brought, as actions have already been brought by two of the persons concerned.
13. 21. In these circumstances, the Committee might have taken the view in the first place that the present case merely involves a dispute caused by an organisation's desire to initiate a practice of union security and that, consequently, it would not be appropriate for it to express any opinion on the matter, firstly, for the reasons indicated in paragraphs 19 and 20 above and, secondly, by reason of the fact that the case has been brought before the competent courts of the country concerned, which appear to be in a position to decide whether rights have been violated or not.
14. 22. However, having regard to the request made by the Government and desiring to have before it all information relevant to the case, the Committee has hitherto refrained from submitting its recommendations to the Governing Body until it might have information as to the outcome of the pending proceedings.
15. 23. Although the information before it in this connection is still incomplete, the Committee nevertheless now has information as to the decisions of the civil courts in similar cases and as to the arbitral award made with respect to the case of Mr. Schutz, who is one of the persons involved in the complaint. In both these decisions the findings are in favour of the complaining organisation, which means that the substantiation of its complaint has been recognised tacitly by the national courts.
16. 24. Further, as pointed out in paragraph 18 above, the complaining organisation, following the conclusion of agreements between the Swiss Typographical Federation and the Swiss Printing Workers' Union, has requested that the examination of the complaint should be abandoned. This raises a procedural point which the Committee has already been called upon to examine in the past. In Case No. 66 relating to Greece, the Committee expressed the view that the desire shown by a complaining organisation to withdraw its complaint, while constituting a factor to which the greatest attention must be paid, is not, however, in itself sufficient reason for the Committee to cease automatically to proceed with the examination of the complaint. The Committee considered in that case that it should be guided in this respect by the conclusions approved by the Governing Body in 1937 and 1938 with regard to two representations submitted by the Madras Labour Union for Textile Workers and by the Société de Bienfaisance des Travailleurs de l'Ile Maurice, in accordance with article 23 of the Constitution of the Organisation (now article 24). The Governing Body at that time established the principle that, from the moment that a representation was submitted to it, it alone was competent to decide what effect should be given to it, and that "the withdrawal by the organisation making the representation is not always proof that the representation is not receivable or is not well founded ". The Committee considers that, in implementing this principle, it is free to evaluate the reasons given to explain the withdrawal of a complaint and to investigate whether these appear sufficiently plausible to lead one to believe that the withdrawal was made in complete independence. The Committee observed that cases might exist in which the withdrawal of a complaint by the organisation presenting it would be a result not of the fact that the complaint had become without purpose but of pressure exercised by the government against the complainants, the latter being threatened with an aggravation of the situation if they did not consent to this withdrawal.

B. B. The Committee's conclusions

1. 25. In the present case, the Committee considers that the reasons given by the complaining organisation for the abandonment of the examination of the complaint -the conclusion of agreements between the two trade union organisations concerned which put an end to the situation that gave rise to the dispute-show that the complaining organisation is acting of its own free will. The Committee, therefore, considers that it should have regard to the desire to withdraw the complaint.