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FEDERAL CONSTITUTION
CODE OF OBLIGATIONS
FEDERAL LAW ON PRIVATE INTERNATIONAL LAW
LUGANO CONVENTION
CODE OF CRIMINAL PROCEDURE
CIVIL PROCEDURE CODE
FEDERAL ACT ON POLITICAL RIGHTS
CIVIL CODE
FEDERAL ACT ON CARTELS AND OTHER RESTRAINTS OF COMPETITION
FEDERAL ACT ON INTERNATIONAL MUTUAL ASSISTANCE IN CRIMINAL MATTERS
DEBT ENFORCEMENT AND BANKRUPTCY ACT
FEDERAL ACT ON DATA PROTECTION
SWISS CRIMINAL CODE
CYBERCRIME CONVENTION
- I. Genesis
- II. Background and systematics
- III. Commentary
- About the authors
- Recommended further reading
- Bibliography
I. Genesis
1 The Industrial Revolution considerably transformed the socio-economic situation of 19th century European societies. It gave rise to a working and urban class often subject to difficult living conditions. Ideologically supported by Marxist socialist thought in Europe, the labor movement gradually asserted its need for legal protection, and acquired certain rights that gave rise to labor law.
2 This need for protection was reflected in European labor legislation. In Switzerland, the first legal rules protecting male and female workers emerged in the early 19th century, initially at cantonal level. The cantons had exclusive jurisdiction in this area. Initially, protection extended mainly to women's and children's work, and only in industry, even though the agricultural sector employed around 50% of the Swiss population in 1850. In terms of legislation, the canton of Zurich was a forerunner in Switzerland with the adoption of a cantonal regulation on November 7, 1815, protecting children working in factories. Canton Thurgau followed suit with a similar ordinance on child labor on December 22, 1815. The canton of Glarus was the first to extend protection to adult factory workers.
3 While the Federal Constitution of September 12, 1848 marked the establishment of the Swiss federal state, it wasn't until the adoption of the Federal Constitution of May 29, 1874 (aCst.) that the state acquired legislative powers at federal level for the protection of workers. Art. 34 aCst. first conferred on the Confederation the power to legislate for the protection of workers in certain areas. Paragraph 1 of this provision stipulates that the Confederation is empowered to "lay down uniform regulations on child labor in factories, on the working hours that may be imposed on adults, and on the protection to be afforded to workers against the exercise of unhealthy and dangerous industries".
4 It was on this basis that the Swiss Confederation adopted the Federal Law of March 23, 1877 on work in factories, accepted by the people in a referendum on October 21 of the same year. This law prohibited the employment of children under the age of fourteen in factories, limited the working day to eleven hours, regulated night work and introduced employer liability for workplace accidents. With its adoption, Switzerland now had some of the most protective legislation in Europe.
5 However, federal jurisdiction remained limited to work in factories as such. With the entry into force of Art. 34ter aCst. on July 5, 1908, the Confederation's legislative jurisdiction was extended to the arts and crafts, i.e. to activities in the crafts and trades. However, this extension still excluded the agricultural sector.
6 In the post-war context, the people and the cantons accepted a revision of certain economic articles of the Constitution, which further extended the Confederation's powers in the fields of public labor law and social insurance. The revision of Art. 34ter aCst. gave the Confederation the right to legislate more broadly "on the protection of employees and workers", "on relations between employers and employees or workers, in particular on the joint regulation of matters concerning the company and the profession", and "on the general binding force of collective employment contracts".
7 The current Art. 110 Cst. essentially reproduces the 1947 version of Art. 34ter aCst. Paragraph 3, on the August 1st holiday, incorporates and clarifies art. 116bis aCst. This paragraph was added to the 1874 Constitution following the acceptance of a popular initiative in 1993. On the other hand, art. 34 aCst. on factory work was deemed obsolete and was not reinstated.
8 Several popular initiatives have tried in vain to amend art. 34ter aCst. or art. 110 Cst. Most were aimed at increasing vacation entitlement or protecting wages, such as the "6 weeks' vacation for all" initiative, the "for shorter working hours" initiative and the minimum wage initiative. The "1:12 - For fair wages" initiative aimed to limit the difference between the highest and lowest wages in a company to twelve times. Finally, the popular initiative "for an unconditional basic income" was rejected on June 5, 2016. A new initiative on the subject, "vivre avec dignité - pour un revenu de base inconditionnel finançable", recently failed at the signature-gathering stage.
II. Background and systematics
9 Art. 110 of the Swiss Constitution is a central provision of (public) labor law. It is found in Chapter 2 of Title III of the Constitution, which governs the division of powers between the Confederation and the cantons. The purpose of this provision is to empower the Confederation to legislate in certain areas of public labor law, in particular the protection of workers. In the area of labor law, the power to legislate on economic policy in the field of employment and on unemployment insurance is the subject of more specific provisions, respectively articles 100 and 114 Cst. In addition, art. 122 para. 1 of the Swiss Constitution provides the constitutional basis for private labor law. It confers on the Confederation the power to legislate in matters of civil law and civil procedure.
10 Art. 110 Cst. is therefore not a norm conferring fundamental rights on individuals in matters of employment. Indeed, the Constitution only guarantees freedom of association and the right to strike in the title devoted to fundamental rights. Unlike other national constitutions, the Federal Constitution does not guarantee a fundamental right to fair and equitable working conditions, even though this right is enshrined in the Universal Declaration of Human Rights and the International Covenant on Economic, Social and Cultural Rights. The International Labour Organization has also recently added safe and healthy work to its list of fundamental principles and rights at work. Generally speaking, the Constitution also emphasizes the individual's responsibility to provide for his or her own needs (art. 6 Cst.), and does not guarantee any right to social security beyond situations of hardship (art. 12 Cst.).
11 While the Constitution guarantees few fundamental labor rights, it does mention certain work-related social goals. For example, under art. 41 para. 1 let. d Cst. the Confederation and the cantons must undertake to ensure that all persons capable of working are able to support themselves by working under fair conditions. However, no subjective right to state benefits can be deduced from art. 41 Cst. This social aim is inspired by the internationally recognized fundamental right to work. Articles 100 Cst. on economic policy and 110 Cst. on labour, which empower the Confederation to take measures in the field of employment and to legislate on the protection of workers, enable the Confederation to put this social goal into practice, without however obliging it to do so. By international comparison, however, the Federal Constitution can be described as "liberal" rather than "social", at least as far as worker protection is concerned.
III. Commentary
12 Article 110 of the Federal Constitution consists of three paragraphs. The function of Article 110 para. 1 is to confer legislative competence on the Confederation in certain areas of "labor". These essentially concern public labor law and, secondarily, collective labor law relating to collective labor agreements. On the other hand, art. 110 para. 1 of the Swiss Constitution does not form the basis for the federal authority to legislate on private labor law, which is conferred by art. 122 para. 1 of the Swiss Constitution. Art. 110 para. 2 Cst. then specifies the conditions under which a collective bargaining agreement can become binding for an entire profession or economic sector. Finally, art. 110 para. 3 Cst. regulates the consequences of the national holiday of August 1 from the point of view of labor law.
A. Art. 110 al. 1 Cst. legislative competence
13 The areas in which the Confederation is empowered to legislate under Art. 110 para. 1 Cst. are worker protection (let. a), relations between employers and workers (let. b), the employment service (let. c) and the extension of the scope of collective labor agreements (let. d). These areas are presented in turn.
1. Art. 110 al. 1 let. a Cst. protection of workers
14 Under art. 110 para. 1 lit. a Cst. the Confederation is empowered to legislate "on the protection of workers". The personal scope of this provision, through the concept of "workers", must first be presented, before the material scope of "protection" in the practice of the Federal Court is considered.
15 With regard to the personal scope of application of art. 110 para. 1 let. a Cst, it has not always been a question of "workers". As mentioned in the genesis of art. 110 Cst. (supra, nos. 4 and 5), federal jurisdiction initially covered only people working in factories, then in "arts and crafts", before applying more generally to "employees and workers" and finally to "workers". Despite this evolution, some workers remain unprotected by public law, either because the Confederation has not exercised its powers, or because they do not qualify as workers.
16 On the one hand, the Confederation did not make full use of its powers when it adopted the Federal Act of March 13, 1964 on Labor in Industry, Craft Trades and Commerce (LTr). This law has become the essential standard of public labor law. It regulates questions of health and working hours, including Sunday work, and contains special protective provisions for young workers, pregnant women and nursing mothers. Although its scope is broad, it does not apply, for example, to people working in agricultural enterprises and private households. Most civil servants are subject to a special federal or cantonal regime.
17 On the other hand, doctrine is unanimous on the fact that protection applies exclusively to salaried employees, i.e. to a person providing a dependent service to an employer in return for remuneration. An employment relationship must exist, and this concept therefore excludes all self-employment and unpaid work such as voluntary work.
18 In this respect, the emergence of new forms of work, sometimes considered "neoliberal", raises questions about the qualification of professional status. This is particularly the case for the professional status of people working in so-called platform activities, for example in passenger transport and home delivery, but also for a whole range of "freelancers". While some of these people are qualified and on high incomes, others are forced to accept new forms of work, perhaps more flexible, but often also less remunerated and lacking the economic benefits that an employer must guarantee for a similar service in an employment relationship. This issue recently prompted the European Commission to propose a directive aimed at clarifying the professional status of platform workers by providing for a legal presumption of an employment relationship. In Switzerland, the Federal Court has also confirmed the existence of an employment relationship and not the self-employment of drivers in Uber cases.
19 As regards the material scope of "protection" of workers, this is interpreted broadly. It encompasses all aspects of personality, including health, the private sphere and the right not to be discriminated against. In addition to the LTr, the Federal Equality Act of March 24, 1995 and the Federal Act of October 8, 1999 on accompanying measures applicable to posted workers were also adopted partly on the basis of art. 110 al. 1 let. a. Cst. In practice, the Federal Court has determined that, by virtue of its scope, the LTr exhaustively regulates the protection of workers. In principle, therefore, the cantons no longer have jurisdiction in this area. However, even when the federal regulations are exhaustive, a cantonal solution is not ruled out when it pursues a different goal than the protection of workers. This has been the case, for example, with the closing of stores on Sundays, the introduction of a cantonal minimum wage and the ban on passive smoking, as described below.
20 On the question of Sunday store closures, the Federal Court has consistently held that cantonal provisions on Sunday work and store openings cannot be intended to protect workers, as this issue is exhaustively regulated by the LTr. The LTr does, however, reserve to the cantons the right to lay down police regulations on Sunday rest and opening hours, in particular to ensure public order and peace.
21 In the context of the adoption of a cantonal law on minimum wages, the Federal Court has also recognized cantonal competence to legislate, provided that the measure is aimed at combating poverty and does not constitute a measure of economic policy or worker protection. In practice, this means that the minimum wage must be set at a relatively low level, close to the minimum income resulting from insurance or social assistance systems.
22 In addition, the Confederation has used its legislative powers to protect workers' health by adopting the Federal Act on Protection against Passive Smoking. However, art. 4 of this law stipulates that the cantons may adopt stricter "health protection" provisions. The Federal Court has clarified that this reservation authorizes cantons to adopt stricter smoking bans in order to protect the health of consumers, but not to protect workers, as this area is exhaustively governed by federal law. In terms of worker health, the Confederation also intervened during the COVID-19 pandemic by imposing certain obligations on employers. The COVID-19 Act, however, was based more broadly on federal competence in private labor law, without mentioning art. 110 of the Swiss Constitution.
23 Finally, the federal legislature recently affirmed that art. 110 para. 1 Cst. could serve as a complementary constitutional basis to art. 116 Cst. on family allowances with regard to legislation on out-of-school and out-of-family childcare places.
2. Art. 110 al. 1 let. b Cst. relations between employers and employees
24 According to Art. 110 al. 1 let. b Cst., the Confederation may legislate "on relations between employers and workers, in particular on the joint regulation of matters concerning the company and the professional field". Letter b essentially reproduces the corresponding letter of art. 34ter aCst. which was intended to distinguish the Confederation's competence with regard to "individual" relations between an employer and a worker, which are governed by private law. In fact, individual relationships between an employer and a worker are governed by employment contract legislation (articles 319 to 362 of the Swiss Code of Obligations). The constitutional basis for these provisions is art. 122 para. 1 of the Swiss Constitution, which confers on the Confederation the power to legislate in matters of civil law. On the other hand, art. 110 para. 1 let. b Cst. deals with the manner of participating in or managing a company, and the role assigned to workers collectively in this function.
25 The popular initiative "pour la participation des travailleurs" (for worker participation), tabled in 1971, sought to enable the Confederation to legislate expressly "on the participation of workers and their organizations in decision-making in companies and administrations". The Federal Assembly submitted a counter-proposal specifying that "the Confederation has the right to legislate on appropriate worker participation at operational level, safeguarding decision-making possibilities and the economic management of the company". Both the popular initiative and the counter-proposal were rejected by the people and the cantons in March 1976.
26 In the early 1990s, a controversy arose over the material scope of Art. 110 para. 1 let. b Cst. Some writers felt that the constitutional basis was not sufficient to establish legislation on worker participation not only in the operation of a company, but also in its economic management. For others, this provision did not exclude the Confederation's competence in the matter. It was on the basis of this constitutional provision that the Federal Act on Information and Consultation of Employees in Undertakings (Participation Act, LPart) was passed on December 17, 1993, but it does not deal with participation in the economic management of a company.
27 The Participation Act applies to private companies and guarantees various participation rights for workers, including the right to be informed or to participate in certain matters such as accident prevention. In companies employing at least fifty people, they can elect representatives. These rights apply to all those who work on a long-term basis for the company or its sector, under an employment contract, whatever their function or hierarchical level. Workers must have the necessary time to study the information provided by the employer, formulate concrete proposals and bring them to the employer's attention.
28 Controversy persists as to whether art. 110 al. 1 let. b Cst. can serve as the basis for a law guaranteeing not only information or consultation, but genuine participation by workers in the management, i.e. decision-making, of the company.
3. Art. 110 al. 1 let. c Cst. Placement service
29 Under Art. 110 para. 1 let. c of the Swiss Constitution, the Confederation may legislate "on the placement service". This provision corresponds to letter e of article 34ter aCst. in its 1947 version. The notion of placement extends to both private and public placement of people.
30 This provision forms the basis of the Federal Law on Employment Services and the Hiring of Services of October 6, 1989 (LSE). This law covers both private placement and leasing of services, as well as the public employment service. Its aim is to protect workers who use these services. With this law, the federal legislator has comprehensively regulated the placement service, which was not the case with the previous Employment Service Act of June 22, 1951.
31 The aim of the LSE is to prevent "black market" placement and improve worker protection, while ensuring that private placement takes precedence over public placement. It also regulates the activities of temporary employment agencies, as well as temporary employment relationships and contracts, which was not the case under the previous law. It is accompanied by the Ordinance of January 16, 1991 on the employment service. The chapter concerning the public employment service was supplemented in 2017 by a section on the obligation to communicate vacancies. This amendment follows the adoption of art. 21a of the Federal Foreign Nationals Act of December 16, 2005, as part of the implementation of art. 121a Cst. relating to immigration management.
4. Art. 110 al. 1 let. d Cst. collective labor agreements
32 With the 1947 constitutional revision on economic articles, the Confederation acquired the power to legislate on "the general binding force of collective labor contracts". The text of the current 1999 Constitution is more precise. It confers on the Confederation the right to legislate "on the extension of the scope of collective labor agreements".
33 A collective labor agreement is an agreement between employers or employers' associations, on the one hand, and workers' associations, on the other. It covers the conclusion, purpose and termination of individual employment contracts between employers and the workers concerned. The special feature of the collective labor agreement is that it is binding on third parties, i.e. members of signatory associations who have not directly entered into the agreement. Its provisions have a direct and imperative effect on the employers and workers they bind. In practice, 581 collective labor agreements covered more than 2.1 million employees in Switzerland on March 1, 2018.
34 On the other hand, a collective agreement is not binding on employers and workers who are not members of a signatory association. The existence of a potential economic advantage for "dissident" competing companies is problematic. Such an advantage could arise, for example, for a non-member employer who is therefore not obliged to respect the minimum wage agreed by the other employers in an industry. To remedy this situation and re-establish fairer competition, the Confederation has the power, under certain conditions, to extend the scope of application of a collective bargaining agreement to an entire economic sector or to a particular profession. It should be noted that compliance with the working conditions and minimum wages laid down in a legally binding collective agreement also applies to companies based abroad that second employees to Switzerland under the terms of the Seconded Workers Act.
35 The Confederation made full use of this power with the adoption of the Federal Act to Extend the Scope of the Collective Labor Agreement of September 28, 1956 (LECCT). This law describes the conditions for extending an agreement, in order to take into account the rights and interests of players not subject to it. These conditions find their constitutional basis in art. 110 al. 2 Cst. as presented in the following section.
B. Art. 110 al. 2 Cst. conditions for extending collective agreements
36 Art. 110 para. 2 Cst. is directly linked to the federal power to legislate on the extension of the scope of application of a collective labor agreement in para. 1 let. d. According to Art. 110 para. 2 of the Swiss Constitution, the Confederation must meet a number of conditions in order to extend the scope of application of a collective labor agreement to an entire branch or profession. These conditions are set out in art. 2 of the LECCT.
37 Firstly, the extension of an agreement must take fair account of the legitimate interests of minorities and regional particularities. An agreement can only be extended if it already covers a significant number of employers and workers. Art. 2 ch. 3 LECCT provides for a triple quorum system. The agreement must already cover the majority of workers and employers in the branch or profession, and the employers bound by the agreement must already employ the majority of all workers. Several parliamentary initiatives "for a modern social partnership" have called for the deletion of this last condition, on the grounds that this requirement is difficult to meet in economic sectors where a large number of micro-businesses each employ a small number of workers. For the minority that is subject to extension, the law only stipulates that the interests of this minority must be taken into account when they result from the diversity of regional and company conditions. Lastly, extension must respect the principle of equality before the law and freedom of association. On the condition of respect for trade union freedom, art. 2 ch. 5 LECCT specifies only that the players retain their right to join or not to join an association.
38 These conditions must also be respected by the cantons, when the extension is limited to all or part of the territory of a single canton. In practice, the jurisprudence of the Federal Court has thus focused on compliance with federal law when extending a collective agreement, notably by the cantons.
C. Art. 110 al. 3 Cst. August 1st
39 Art. 110 para. 3 Cst. stipulates that August 1st is the national holiday. From the point of view of labor law, it is treated in the same way as Sundays, and is remunerated. To date, it is the only federal holiday. The date refers to the Federal Pact in which the three original cantons (Uri, Schwyz, Unterwalden) entered into a defensive alliance at the beginning of August 1291. August 1st was introduced into art. 116bis aCst. following acceptance of the popular initiative "for a national holiday" of September 26, 1993. Art. 110 al. 3 Cst. is accompanied by the Ordinance of May 30, 1994 on the national holiday, which recalls that August 1st is a non-working holiday that is assimilated to Sundays and cannot be counted as a public holiday under art. 18 al. 2 LTr, and must be fully remunerated. Art. 2 of the Ordinance goes on to specify that the employment of workers on the national holiday is governed by the regulations on Sunday work, subject to cantonal law governing Sunday rest and the opening hours of establishments used for retail, catering or entertainment purposes.
40 The fact that this provision has been included in art. 110 of the Swiss Constitution, which relates to labor, is due to its second sentence, which defines the way in which this day is to be treated under labor law. Firstly, August 1st is assimilated to Sundays. Art. 1 of the Swiss National Holiday Ordinance and Art. 20a para. 1 of the Labour Act also make this clear. The provisions on the prohibition of Sunday work and the exceptions to this prohibition therefore apply to August 1st. Secondly, para. 3 enshrines the principle of remuneration. Originally, art. 116bis aCst. did not deal with remuneration. Today, art. 110 para. 3 Cst. directly confers a right to payment of wages. This obligation has not been incorporated into either the Swiss Code of Obligations or the Labor Act. According to the Federal Court, the right to payment of wages is a right deriving directly from the Constitution. Jurisprudence has also clarified that this right to wages also exists with regard to people paid by the hour, provided they worked on August 1st. This right applies to both private and public law relationships.
About the authors
Prof. Dr. Nicolas Bueno is Professor of International and European Law at UniDistance Switzerland. He obtained his doctorate from the University of Lausanne and conducted doctoral and post-doctoral research at Columbia Law School (Fulbright), the University of Louvain, the London School of Economics and the University of Zurich (SNF-Ambizione). Her research projects focus on the labor responsibilities of multinational corporations and the future of labor law in post-growth theory.
Yasmin Bellazrak - Dinari, MLaw, is a doctoral student and research and teaching assistant in public international law at UniDistance Switzerland. She is currently writing her doctoral thesis on the international protection afforded to migrant victims of human trafficking. Her research focuses on the international protection of human rights.
Recommended further reading
Bogg Alan/Ford Michael, Article 31: Fair and Just Working Conditions, in: Peers Steve/Hervey Tamara/Kenner Jeff/Ward Angela (édit.), The EU Charter of Fundamental Rights, Baden-Baden 2022, 875-922.
Bueno Nicolas, Corporate Liability for Violations of the Human Right to Just Conditions of Work in Extraterritorial Operations, 21(5) The International Journal of Human Rights (2017) 565-588, https://doi.org/10.1080/13642987.2017.1298092.
Dunand Jean-Philippe/Lempen Karine/Perdaems Elsa, Droit du travail, Bâle 2020.
Portmann Wolfgang/Wildhaber Isabelle, Schweizerisches Arbeitsrecht, 4ème éd., Zürich/St.Gallen 2020.
Saul Ben/Kinley David/Mowbray Jacqueline, The International Covenant on Economic, Social and Cultural Rights: Commentary, Cases, and Materials, Art. 7: Just and Favourable Conditions of Work, Oxford 2014.
Saul Ben, Right to Just and Favourable Conditions of Work, in: Binder Christina/Nowak Manfred (édit.), Elgar Encyclopedia of Human Rights, Cheltenham 2022, p. 583-588.
Wyler Rémy/Heinzer Boris, Droit du travail, Berne 2019.
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Bueno Nicolas, Right to Work, in Binder Christina/Nowak Manfred (édit.), Elgar Encyclopedia of Human Rights, Cheltenham 2022, p. 578–583.
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