Texts of pending comments

Articles 1 and 2 of the Convention. Gender wage gaps and their causes. The Committee notes the Government’s indication in its report that, according to the Federal Office for Statistics, gender wage gaps have progressively lessened in the private sector: from an average of 21.3 per cent in 2012 to 19.5 per cent in 2014, they went to 19.6 per cent in 2016 and remained unchanged in 2018 (arithmetic average). However, across the entire public sector (Confederation, cantons and communes), the gender wage gap has widened: it amounted to an average of 18.1 per cent in 2018 while it was only at 16.7 per cent in 2016. It also notes that, according to the study of the explanatory variable component and the unexplained differential component in wage differentials, based on the Oaxaca model, the unexplained component (that is the component that is not based on objective factors, such as personal history – age, training, years of service, the nature of the post occupied in the enterprise or field of work) of gender wage gaps in the private sector rose to 44.3 per cent in 2018, while it was only at 42.9 per cent in 2016 and 39.1 per cent in 2014. Across the public sector it progressed to 37.2 per cent in 2018, while it was only at 34.8 per cent in 2016, but had been at 41.7 per cent in 2014. With regard to combating stereotypes, the Committee welcomes the Equality Strategy 2030, adopted on 28 April 2021 by the Federal Council (2021-2023), which includes among its objectives the elimination of the unconscious stereotypes and prejudices that determine the roles of women and men in the family and in society, in particular by providing information, awareness and training in all areas, especially institutional, to help prevent discrimination, sexism and gender stereotypes by establishing the pertinent facts in all areas and conducting monitoring activities. In this regard, it notes that the Equality Strategy 2030 is also aimed at achieving a better work/life balance. Noting once again that the gender wage gap remains significant in the country and is only changing very slowly and that the unexplained variable component has increased in both the private and public sectors, the Committee requests the Government to provide information, including statistics, on the implementation of measures under the Equality Strategy 2030 to combat the causes of the wage gaps, including gender stereotyping leading to gender-based occupational segregation, and on the difficulties encountered, principally by women, in reconciling professional and family responsibilities. It also requests the Government to: (i) continue to evaluate the differential, including the unexplained differential component; (ii) examine the reasons why the unexplained differential component continues to rise to be able to formulate appropriate measures; and (iii) provide information on developments in the wage gaps.

Measures aimed at promoting equal wages for men and women for work of equal value. Development in legislation. The Committee notes the detailed information provided by the Government with its report. It notes with interest the revision of the Federal Gender Equality Act (LEg), which now requires employers to carry out wage equality analyses (section 13(a) to 13(i) LEg). With the entry into force of this amendment on 1 July 2020, employers in the public and private sector with a staff of 100 or more workers must conduct regular analyses of wage equality, which are to be verified by a third party. The results of the analyses must be communicated to the staff and, in the public sector, published. The Committee also notes that employers are exempted from further wage analyses if, following the analysis, they show that they respect wage equality; and that on 21 August 2019 the Federal Council adopted the Ordinance concerning verification of the wage equality analysis regulating, inter alia, the training of persons responsible for reviewing the wage equality analysis and modalities for verification of the analysis in respect of Confederation staff. The Committee also notes with interest that: (1) the Equality Strategy 2030 includes among its objectives the elimination of wage discrimination in the public and private sectors; and (2) according to a revision of the Public Procurement Act (LMP) and of the Public Procurement Ordinance that came into force on 1 January 2021, public contracts for services in Switzerland are only awarded to tenderers that respect “gender equality in wages”; this requirement can be verified by the adjudicator or a third party delegated to that end and, the tenderer must provide the necessary evidence, on request. The Committee notes the Government’s indication that the Confederation places, free of charge, a standard online analysis tool, a modernized version of the Logib tool, at the employers’ disposal for the wage equality analysis, with a module especially developed for small enterprises (2-49 workers). Finally, the Committee notes the Government’s indication that the Charter for equal public sector wages, launched in 2016, was signed by the Confederation, 16 cantons and 113 communes, and 62 organizations close to the public sector, and that the results of the monitoring of wage equality in the public sector from 2016 to 2019 show that the Government’s commitment to wage equality has made itself felt in all regions of Switzerland and has been strengthened. Welcoming the continued efforts and the progress achieved in respect of policy and legislation to promote equal wages in the public and private sectors, in particular the development of procedures to analyse and monitor remuneration, the Committee requests the Government to continue to provide information on the measures taken in practice to promote equal remuneration in respect of workers, employers and their organizations, managers of the staff of the administration and public service, especially within the framework of the Equality Strategy 2030, and on the results obtained in reducing wage gaps. The Committee requests the Government to continue providing information on measures taken with regard to public procurement.

Article 4. Collaboration with employers’ and workers’ organizations. The Committee requests the Government to indicate measures taken or envisaged with a view to collaborating with employers’ and workers’ organizations in respect of wage equality and on initiatives carried out in this connection.

Article 1(1)(a) of the Convention. Discrimination based on sex. Sexual harassment. The Committee notes the information provided by the Government in its report regarding jurisprudence in respect of sexual harassment – the third most common type of discrimination brought before the Federal Court – and particularly the broad interpretation of the concept of “workplace” made by the Federal Court in its decision No. 4A_544/2018 of 29 August 2019, in which the unwelcome behaviour detrimental to the dignity of a person at the workplace occurred while the person was incapacitated and at a distance. Moreover, the Committee welcomes: (1) the publication by the Swiss Conference of Equality Delegates (CSDE) in 2020 of an “all-inclusive” kit to prevent sexual harassment at work, with a view to helping enterprises and institutions implement their obligation to provide regular information on sexual harassment and to take appropriate measures to put a stop to it; and (2) the evaluation, with a view to identifying good practices, of a pilot course on preventing sexual harassment in the care sector. The Committee requests the Government to continue to provide information on all measures taken, in collaboration with the social partners, to prevent and address sexual harassment and on the good preventive practices identified in the care sector following the abovementioned evaluation. It also requests the Government to continue to provide information on jurisprudence at federal and cantonal level, including on penalties issued and compensation granted.

Discrimination based on sexual orientation. The Committee welcomes the entry into force on 1 July 2020 of provisions amending section 261bis of the Penal Code by criminalizing discrimination “against a person or group of person on the basis […] of their sexual orientation”. The Committee requests the Government to provide information on the application of section 261bis of the Penal Code in cases of discrimination in employment and occupation.

Article 2. Measures to promote equality between men and women in employment and occupation. The Committee recalls that in its previous comments it emphasized the slow progress in women’s employment. With reference to its observation concerning the adoption, on 28 April 2021, of the Equality Strategy 2030 (a national strategy for gender equality), the Committee notes the Government’s indication that the strategy is intended to promote equality at work, improve work–life balance, prevent violence and combat discrimination. The Government adds that a plan of action to implement the Strategy is to be adopted at the end of 2021 and that a first review will be concluded at the end of 2025. The Committee notes that the Equality Strategy 2030 includes among its objectives: the balanced distribution of the sexes in training, in all occupational groups, at all levels of responsibility as well as in decision-taking bodies; the increase in the proportion of women undertaking higher education, particularly in the fields of mathematics, computer science, natural science and technology; and the improvement of representation of the sexes in senior management posts and diversity in all fields. The Committee requests the Government to provide information on the implementation and results of the Equality Strategy 2030, including in respect of: (i) the plan of action and, in particular, the measures aimed at promoting equality at work, in the public and private sectors, and at removing obstacles to the participation of women in the labour market; and (ii) the projects mentioned by the Government that seek to ensure equal representation of women and men in occupations and branches in which one of the two sexes is clearly under-represented and which suffer from a shortage of qualified workers. The Committee also requests the Government to provide information on all measures taken to combat gender stereotypes in respect of women’s occupational aptitudes and aspirations and to allow women to enjoy a better work–life balance.

Workers with family responsibilities. Paternity leave. The Committee notes with interest the inclusion, in 2020, in the Act concerning benefits in case of loss of earnings, of provisions giving working fathers the right to paternity leave of two weeks, with entry into force at 1 January 2021. Noting that the Equality Strategy 2030 also aims to reinforce the instruments that contribute to improving the work–life balance, the Committee requests the Government to provide information, including statistical data, on initiatives and measures taken or envisaged to allow workers with family responsibilities to improve their work–life balance, and on the results obtained. It also requests the Government to provide the available statistical data on the number of fathers that have taken paternity leave since the entry into force of this measure.

Equality of opportunity and treatment of Roma. The Committee requests the Government to provide information on the measures taken to combat discrimination under the implementation of the Action Plan “Yenish, Manouche, Roma” adopted at the end of 2016, in particular on the measures to combat stereotypes and negative prejudices against these persons when they seek or hold employment.

General observation of 2018. With regard to the points raised above, and with reference to its observation, the Committee wishes to draw the Government’s attention to its general observation on discrimination based on race, colour and national extraction, adopted in 2018. In that observation, The Committee notes with concern that discriminatory attitudes and stereotypes based on the race, colour or national extraction of men and women workers continue to hinder their participation in education, vocational training programmes and access to a wider range of employment opportunities, resulting in persisting occupational segregation and lower remuneration received for work of equal value. The Committee thus considers that it is necessary to adopt a comprehensive and coordinated approach to tackling the obstacles and barriers faced by persons in employment and occupation because of their race, colour or national extraction, and to promote equality of opportunity and treatment for all. Such an approach should include the adoption of interlocking measures aimed at addressing gaps in education, training and skills, providing unbiased vocational guidance, recognizing and validating the qualifications obtained abroad, and valuing and recognizing traditional knowledge and skills that may be relevant both to accessing and advancing in employment and to engaging in an occupation. The Committee also recalls that, in order to be effective, these measures must include concrete steps, such as laws, policies, programmes, mechanisms and participatory processes, remedies designed to address prejudices and stereotypes and to promote mutual understanding and tolerance among all sections of the population.

The Committee draws the Government’s attention to its general observation of 2018 and requests it to provide information in reply to the questions raised in that observation.

Enforcement. Specialized body. The Committee notes the establishment in 2019, of the National Human Rights Institution (INDH) which replaces the Swiss Centre of Expertise in Human Rights (CSDH) created in 2011. It observes that this institution is not competent to deal with individual cases. The Committee requests the Government to provide information on the cases of discrimination in employment and occupation dealt with by the federal labour inspectorate and the courts, specifying the grounds for discrimination and the legal basis, as well as the outcome of the procedure (penalties, compensation, etc.). Recalling the limits of the legislative framework for protection against discrimination, and particularly of the enforcement machinery, the Committee requests the Government to envisage the possibility of establishing a specialized body competent to deal with complaints of discrimination in employment and occupation with a view to affording effective protection to workers against discrimination and enabling them to assert their rights. The Committee requests the Government to indicate the role in practice of the INDH in addressing discrimination in employment and profession.

Articles 1 and 2 of the Convention. Effective protection of workers against discrimination in employment and occupation. Legislation, national policy and other measures. For many years, the Committee has been drawing the Government’s attention to the fact that the legal measures in force are inadequate to ensure the effective protection of workers against discrimination on all of the grounds enumerated in Article 1(1)(a) of the Convention, at all stages of employment, including occupational training, recruitment and terms and conditions of employment, and to enable them to assert their rights in this respect. With regard to discrimination based on sex, the Committee recalls that the Federal Act of 24 March 1995 on equality between women and men explicitly prohibits “discrimination against workers on grounds of sex, either directly or indirectly, in particular on the basis of their civil status, their family situation or, in the case of women, of pregnancy” (section 3(1)). In this regard, the Committee notes with interest that the Government refers in its report to the adoption on 28 April 2021 of the Equality Strategy 2030, a national gender equality strategy which focuses on combating discrimination, promoting equality at work, improving the work/life balance and prevention of violence.

Regarding racial discrimination, the Committee recalls that in its previous report the Government recognized that, in so far as the constitutional provisions are not directly applicable to relations between individuals and that the penal provision (section 261bis of the Penal Code) is not often applicable in the field of employment, victims have to avail themselves of the general provisions of the Civil Code or of the Code of Obligations, including general principles such as good faith or the invalidation of the contract. The Committee recalls that the provisions of the Convention, even where prevailing over national law, may not be sufficient in themselves to provide effective legal protection from discrimination to individual workers and that, where legal provisions are adopted to give effect to the principle of the Convention, they should include at least all the grounds of discrimination specified in Article 1(1)(a) of the Convention (General Survey on the fundamental Conventions, 2012, paragraphs 851 and 853).

In order to ensure the effective protection of workers against discrimination in employment and occupation and to enable them to assert their rights, the Committee requests the Government to take the measures necessary to establish, in addition to the Federal Act of 1995 on equality between women and men, an effective legal framework adapted to the world of work that: (i) includes a definition and a prohibition of direct and indirect discrimination; (ii) covers at least all the grounds other than sex enumerated in Article 1(1)(a) of the Convention, that is colour, race, religion, political opinion, national extraction and social origin; (iii) applies to all stages of employment and occupation, including recruitment. The Committee requests the Government to provide information on any other measure taken or envisaged to prevent and combat discrimination on these grounds in practice, as well as on any measure adopted under the Equality Strategy 2030 to combat gender discrimination in employment and occupation. It also requests the Government to provide information on the access to justice of victims of discrimination in these fields, on the legal basis used and the results obtained through the courts (penalties imposed and compensation granted).

The Committee is raising other matters in a request addressed directly to the Government.

The Committee notes the information provided by the Government, which answers the points raised in its previous direct request and has no further matters to raise in this regard.

Articles 1 and 2 of the Convention. Definitions and exclusions. The Committee requested the Government to provide information on the measures taken or envisaged to guarantee that domestic workers in private households enjoy all the forms of protection provided for in the Convention. It notes with interest that in the context of the review of the Act on undeclared work (LTN) in 2018, the term “Arbeitsplatz” in section 7(1)(a) of the German text of the Act was replaced by “Arbeitsort”, in order to indicate that the supervisory authorities may also carry out LTN inspections in private households. It further notes the information provided by the Government on: labour inspection activities and services; complaints mechanisms accessible by domestic workers; action taken against the exploitation of domestic workers; measures taken by the Swiss authorities to protect domestic workers (including “undocumented” domestic workers) from all forms of abuse, harassment and violence. In particular, the Committee notes Action No. 7 of the National Action Plan to Fight Human Trafficking 2017–2020, on raising awareness of labour inspection through the compilation and distribution of information materials, as well as the awareness campaigns conducted by the State Secretariat for Economic Affairs (SECO). Furthermore, the Committee notes the establishment of a website, information leaflets and advice centres for undocumented persons; and the launch of Careinfo (careinfo.ch), a digital platform created with support from the Equality Office of the City of Zurich, to provide information of use to migrant care workers, private households and care services agencies. The Government has also concluded international social security agreements with 50 States to ensure equal treatment for Swiss citizens and citizens of these States and pensions portability, as well as Operation Papyrus, a special initiative launched in Geneva whereby, under certain conditions, the situation of hundreds of irregular migrants, including domestic workers, can be regularized. With regard to the conditions of employment of domestic workers, the Government indicates that, pursuant to Federal Council decision of 27 November 2019, the validity period of the Ordinance on the standard employment contract for workers in the domestic economy (CTT économie domestique), which provides for mandatory minimum wages in accordance with section 360(a) of the Code of Obligations, was extended by a further three years. The extension entered into force on 1 January 2020 and is effective until 31 December 2022. The Government further indicates that minimum wages, adjusted in line with nominal wage trends for the years 2016 to 2018 in accordance with the proposal of the Tripartite Federal Commission, were increased by 1.6 per cent. With regard to the provision of assistance around the clock to elderly persons in private households, the Government indicates that in 2019, a survey was conducted and an initial assessment made concerning the adoption by the cantons of the standard employment contract on 24-hours-a-day care (CTT 24/24). The survey results indicated that the majority of cantons were in the process of adopting the CTT 24/24 and most planned for it to enter into force in 2019/2020. The Committee also notes that the SECO is requested to establish a further assessment for release in early 2022. With regard to the protection of domestic workers, the Government indicates that measures have been taken to ensure that domestic workers in private households are informed of the protections available to them, and that persons requiring assistance are aware of their obligations. In this regard, the Committee notes that in 2021, fact sheets for workers in the domestic economy on the subject of 24-hours-a-day care were published on the SECO website in the three official languages and eight other languages in order to ensure that domestic workers were able to familiarize themselves with their rights. The fact sheet calls on persons requiring assistance and their families to exercise due diligence and envisages the possibility of eventual criminal prosecutions for failure to meet their obligations, including the obligation to verify that private domestic staff placement agencies hold a valid permit. The Committee notes that the coordinating body of the Swiss employment vouchers scheme, which brings together six public utility organizations in French-speaking Switzerland, launched its first awareness-raising campaign in 2020 with a view to regularizing undeclared domestic workers and reminding employers of their legal obligations. Furthermore, the Committee notes the Government’s indications concerning the content and scope of application of the Ordinance on private domestic workers (ODPr). It also notes the statistics provided by the Government on the monitoring carried out in the context of the CTT économie domestique and on the complaints filed for failure to comply with the minimum wage rate in the domestic work sector, including in respect of the situation of private domestic workers of persons benefiting from privileges, immunities and facilities. With regard to fees charged by private employment agencies, the Committee notes the information provided by the Government, including with respect to the audits of private placement agencies conducted by the competent cantonal authorities in the meaning of section 32 of the Federal Act on employment service and service leasing (LSE, RS 823.11). Noting that the Government intends to improve the situation of domestic workers through the existing legal instruments and does not yet envisage introducing a specific law for this category of workers, the Committee requests the Government to continue to provide information on the measures taken or envisaged to ensure that domestic workers in private households enjoy all the forms of protection provided for in the Convention. It also requests the Government to keep the Office informed of any progress in extending the scope of application of the Labour Act (LTr) to domestic workers. It further requests the Government to provide detailed and updated information on the impact of the COVID-19 pandemic on the application of this Convention, including information on the measures adopted or envisaged to mitigate the impact of the pandemic on decent working and living conditions for domestic workers in Switzerland.

Article 3. Freedom of association and collective bargaining. The Committee requested the Government to provide further information on the nature and impact of the innovative solutions put in place by the authorities to address issues of the representativeness of workers in the domestic sector during negotiations for collective agreements. It also requested 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. The Government indicates that the work of the expert group which culminated in the CTT 24/24 for workers in the domestic economy involved representatives of the cantonal and national authorities, employers’ organizations and organizations operating in the sectors concerned (cleaning and care), as well as trade union representatives. It was thus possible, with the help of the social partners, to establish mandatory minimum wages and binding conditions of employment for domestic workers. However, the Committee notes the Government’s indication that the drafting of standard employment contracts with mandatory minimum wages under section 360(a) of the Code of Obligations aims to cover branches in which no collective labour agreement has been concluded. The Government indicates that, in such cases, the tripartite committees for accompanying measures linked to the free movement of persons may submit a request for the drafting of a standard employment contract in which the social partners are fully involved. The Committee requests the Government to continue to provide updated information on any measures taken or envisaged with a view to promoting the right of domestic workers to form and join organizations of their own choosing, as well as the right to bargain collectively, taking account of the particular characteristics of domestic work, and to keep the Office informed of any progress made in this respect, including with regard to the conclusion of collective agreements in the domestic work sector.

Articles 5, 6, 7, 8(3), 11, 15, 17 and 18. Effective protection against all forms of abuse, harassment and violence. Fair terms of employment, decent working conditions and decent living conditions. Information on terms and conditions of employment. Migrant domestic workers. Minimum wage. Fees charged by employment agencies. Complaint mechanisms. Labour inspection. Implementation of the provisions of the Convention. Application of the Convention in practice. The Committee notes the information provided by the Government in reply to its previous request concerning the application of the provisions of the aforementioned Articles.

Comments adopted by the CEACR: Switzerland

Adopted by the CEACR in 2021

C100 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

C111 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

C111 - Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

C172 - Replies received to the issues raised in a direct request which do not give rise to further comments (CEACR) - adopted 2021, published 110th ILC session (2022)

C189 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)