Industrial disputes

Several different types of dispute can arise in employment relationships: disagreements over pay or working hours, discrimination, compulsory redundancies, etc.

The way that the dispute is resolved will depend in part on the type of employment relationship (under public or private law) as well as the number of people involved (personal dispute or collective dispute).

Personal disputes

The canton's civil tribunals are empowered to resolve personal disputes resulting from employment relationships (rights following from the employment contract). The first instance is often an industrial tribunal, where a judge determines the facts and freely assesses the evidence (Art. 343 CO).

The relevant tribunal is generally the one with territorial jurisdiction over the employer's head office or the worker's normal place of work.

Collective disputes

Switzerland has very few disputes between the two sides of industry (employers and trade unions), as relations between capital and labour are characterised by a principle known as industrial peace. It's as a result of this principle that most disputes between employers and employees are resolved around the negotiating table rather than by confrontation in the form of strikes or lock-outs.

The foundations for this situation were laid in 1937. On the one side, the trade unions undertook to renounce strikes as a means of social conflict; on the other side, company owners agreed to enter into arbitration for disputes about pay.

The state system for settling collective industrial disputes differs depending on the jurisdiction covering the dispute. All the cantons have arbitration offices that help to resolve collective industrial disputes.

Where a collective dispute reaches beyond the borders of a single canton, the Federal Labour Dispute Conciliation Office has jurisdiction. It departs from the primacy of private conciliation. The Federal Labour Dispute Conciliation Office does not intervene unless expressly requested to do so by the parties involved and only if all attempts to reconcile the parties (employers or employer associations and trade unions) in direct negotiations have failed. Its involvement is not permitted if the contracting parties named a different conciliation organisation or an industrial tribunal in the relevant collective labour agreement. The Federal Labour Dispute Conciliation Office does not sit permanently and only convenes when presented with an actual case. It can function as a conciliation board or as an arbitration tribunal mediating between the two parties. If it sits as an industrial tribunal, its decision is binding.

Unlike the Federal Labour Dispute Conciliation Office, the cantonal organisations are permanent and may intervene at their own discretion or at the request of a public authority.

Strikes

While the right to strike is enshrined in the Swiss constitution, the text does provide for the law to forbid certain groups of people from taking strike action.

Strikes are permitted provided:

  • they relate to labour relations,
  • they comply with the obligation to preserve the industrial peace or to seek conciliation, and
  • they respect the principle of proportionality.

Taking part in strike action is legal and the resultant stoppage does not constitute a failure on the part of the employee in terms of company loyalty. In turn, the employer is not required to continue paying strikers for the period of the stoppage.

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