1Employees, employers and their organisations have the right to join together in order to protect their interests, to form associations and to join or not to join such associations.
2Disputes must wherever possible be resolved through negotiation or mediation.
3Strikes and lock outs are permitted if they relate to employment relations and if they do not contravene any requirements to preserve peaceful employment relations or to conduct conciliation proceedings.
4The law may prohibit certain categories of person from taking strike action.
#Overview
Art. 28 Cst. regulates freedom of association. This is the right of employees and employers to organise in trade unions and associations. The provision protects both the right to join an organisation and the right to stay away.
The provision guarantees three important areas: First, the establishment of employee and employer organisations. Second, collective bargaining autonomy — that is the right to collectively negotiate wages and working conditions. Third, the right to strike and the right to lockout.
A strike is only permitted under certain conditions. It must concern employment relationships and must not violate the obligation to maintain industrial peace. Trade unions usually conduct strikes. The law may prohibit certain persons from striking, for example police officers or judges.
Before industrial action, the parties should attempt to resolve their disputes peacefully. This can be done through direct negotiations or through mediation.
Example: The trade union Unia wants to achieve higher wages for construction workers. It first negotiates with the master builders' association. If the talks fail, it may call a strike. The construction workers may then down tools without being dismissed. Wildcat strikes without trade union involvement are, however, usually not permitted.
Freedom of association also applies to civil servants. They have the right to organise in trade unions. Trade unions may demand that the state recognise them as negotiating partners and grant them access to administrative buildings.
The provision implements international treaties, particularly the conventions of the International Labour Organisation and the European Convention on Human Rights. These oblige Switzerland to protect the freedom of association of the social partners.
In conflicts between employers and employees, Art. 28 Cst. also has effect in private law. Courts must respect freedom of association when deciding on dismissals or damages.
Art. 28 FC — Freedom of Association (Trade Union Freedom)
#Doctrine
#1. Legislative History
N. 1 Art. 28 FC is one of the few provisions of the total revision of 1999 that goes substantively beyond a mere updating of existing law. Freedom of association in labour matters was not expressly anchored in the old Federal Constitution of 1874; it was implicitly derived from the general freedom of association by practice and doctrine. In the explanatory message (BBl 1997 I 1, p. 177 ff.), the Federal Council justified the need for an independent provision on the grounds that Switzerland had recognised freedom of association under international law through the ratification of the UN Covenant I, the UN Covenant II, and ILO Convention No. 87 (1975), and that, for reasons of transparency, explicit constitutional entrenchment was warranted (BBl 1997 I 1, p. 178). With the same logic, the Federal Council recognised strikes and lockouts as direct consequences of freedom of association (BBl 1997 I 1, p. 179 f.) and proposed their explicit entrenchment.
N. 2 The parliamentary deliberation process was considerably controversial. In the Council of States, the commission majority (rapporteur Cottier Anton, C, FR) moved for the complete deletion of paragraphs 3 and 4, arguing that there was no written constitutional right to strike and that civil service legislation prohibited it. Council of States member Rhinow René (R, BL) recommended, as rapporteur, a compromise motion (Minority I, Marty Dick, R, TI) that would declare strikes and lockouts permissible under certain conditions without expressly recognising them as a subjective right — and commented on the debate with the words: «Wer den Streik regle, wolle ihn auch — dies ist aber so absurd, wie wenn man denjenigen, die den Konkurs regeln wollen, vorwerfen würde, sie wollten den Konkurs.» Federal Councillor Leuenberger (Moritz) declared complete deletion to be unacceptable under any circumstances. Council of States member Brunner Christiane (S, GE) defended the Federal Council draft and emphasised that the right to strike was implicitly recognised in Swiss law: «Car, si la grève et le lock-out sont licites, nécessairement ils constituent bel et bien un droit.»
N. 3 In the National Council, the commission majority agreed with the Federal Council draft (rapporteur Hubmann Vreni, S, ZH). National Council member Keller Rudolf (D, BL) categorically rejected the entrenchment: «Wir wollen keine italienischen oder französischen Streikzustände in unserem Land.» For the Social Democrats, National Council member Jutzet Erwin (S, FR) made the inclusion of the right to strike a sine qua non for consent to the total revision. After several rounds of conciliation — both chambers adopted the definitive text in the final vote on 18 December 1998 — a formulation was found that subjects the right to strike and lockout to explicit conditions, without conclusively answering the question of their character as a subjective right or as an objective norm of admissibility. The legislature thereby aligned itself with the Inderkum motion, which incorporates the principle of proportionality without using the politically contested word «nur» («only»).
#2. Systematic Classification
N. 4 Art. 28 FC belongs to the second section of the catalogue of fundamental rights (Art. 7–36 FC) and is conceived as a specific fundamental right. It is a combined liberty right: para. 1 guarantees an individual and collective, negative and positive freedom of association; para. 2 lays down the principle of priority for peaceful dispute resolution; para. 3 contains the constitutional legal basis for strikes and lockouts; para. 4 contains a statutory reservation for strike prohibitions for certain categories of persons. Art. 28 FC is lex specialis in relation to the general freedom of association (→ Art. 23 FC) and covers all collective labour law relationships aimed at protecting interests. As a fundamental right, Art. 28 FC is subject to the general limitations of Art. 36 FC (→ Art. 36 FC).
N. 5 In relation to international law, Art. 28 FC is closely connected with Art. 11 ECHR (freedom of association and assembly), Art. 22 UN Covenant II, and Art. 8 UN Covenant I. ILO Convention No. 87 (Freedom of Association and Protection of the Right to Organise, SR 0.822.719.7) and ILO Convention No. 98 (Right to Organise and Collective Bargaining, SR 0.822.719.9) — both ratified by Switzerland — substantially shape the interpretation of Art. 28 FC (BGE 144 I 50 E. 4.2, 5.3.3). In the national context, Art. 28 FC interacts with Art. 357a CO (relative duty of industrial peace) and the AVEG (extension of collective labour agreements to the whole industry; ↔ Art. 110 FC) with regard to collective labour law.
#3. Elements of the Provision / Normative Content
3.1 Freedom of Association (para. 1)
N. 6 Art. 28 para. 1 FC protects freedom of association in its individual and collective dimensions. Individual freedom of association comprises: (a) the right to join together to protect one's own interests and to form or join organisations (positive freedom of association); (b) the right to stay away from organisations (negative freedom of association). The right-holders are employees, employers, and their organisations. The wording of para. 1 uses the statutory formulations («Arbeitnehmerinnen und Arbeitnehmer», «Arbeitgeberinnen und Arbeitgeber»), which is significant because — in contrast to ILO law — neither organisational character nor collective bargaining capacity is thereby presupposed (Häfelin/Haller/Keller/Thurnherr, Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N 701 f.).
N. 7 Collective freedom of association protects organisations in their existence and freedom of action: according to case law, this includes in particular the right to participate in collective bargaining and to conclude collective labour agreements. A trade union may invoke freedom of association in order to enforce claims for participation in collective bargaining or for the conclusion of a collective agreement with a public employer, to the extent that it can be recognised as a social partner — i.e. is sufficiently representative and behaves loyally (BGE 140 I 257 E. 5.1, 5.2.1). This also applies to public sector trade unions, which are not excluded from collective freedom of association from the outset (BGE 140 I 257 E. 5.1.1). The State as employer must also enable trade unions to effectively exercise their activities; a blanket prohibition on access to public administrative buildings violates freedom of association (BGE 144 I 50 E. 5.3–5.4).
N. 8 Art. 28 FC has primarily a defensive effect against state interference. In addition, the provision has an indirect third-party effect (indirekte Drittwirkung) in the area of private sector employment relations: a court adjudicating the lawfulness of an industrial action measure must take Art. 28 FC into account (BGE 132 III 122 E. 4.4.1; BGE 144 I 50 E. 4.1). A direct third-party effect — such as a right of access to private company premises — does not exist, however (BGE 144 I 50 E. 5.1–5.2).
3.2 Priority of Peaceful Dispute Resolution (para. 2)
N. 9 Art. 28 para. 2 FC obliges the parties to resolve disputes «as far as possible» through negotiation or mediation. This provision codifies the principle of last resort (Ultima-ratio-Prinzip): industrial action measures are only permissible once negotiations have failed or appear hopeless (BGE 132 III 122 E. 4.4.2; BBl 1997 I 1, p. 180). The Federal Supreme Court has characterised this principle as an implicit proportionality requirement applicable to all industrial action measures.
3.3 Strike and Lockout (para. 3)
N. 10 Art. 28 para. 3 FC sets out three cumulative conditions for the lawfulness of strikes and lockouts:
- Connection to employment relations: Political strikes or those without a connection to specific employment relationships are impermissible. A strike is defined as the collective refusal of owed work performance for the purpose of enforcing demands concerning specific working conditions (BGE 134 IV 216 E. 5.1.1; BGE 125 III 277 E. 3a).
- No conflicting duty of industrial peace: The relative duty of industrial peace (Art. 357a para. 2 CO) prohibits industrial action measures with respect to matters already regulated. An absolute duty of industrial peace must be expressly agreed upon in the collective labour agreement.
- No conflicting obligation to conciliate: Where there is a contractual or statutory obligation to conduct conciliation proceedings, industrial action measures are impermissible until the conclusion of those proceedings.
N. 11 On the basis of Art. 28 para. 3 FC and earlier case law (BGE 125 III 277 E. 3b; BGE 111 II 245 E. 4c), the Federal Supreme Court has developed four cumulative conditions for lawful industrial action measures: (1) connection to employment relations; (2) no violation of the duty of industrial peace; (3) sponsorship by a trade union organisation with collective bargaining capacity; (4) observance of proportionality (BGE 132 III 122 E. 4.4). The criterion of sponsorship by an organisation with collective bargaining capacity remains valid despite its absence from the express wording of para. 3, because the constitutional legislature omitted it only for drafting reasons (BBl 1997 I 1, p. 179; BGE 132 III 122 E. 4.4.2).
N. 12 Proportionality (→ Art. 36 para. 3 FC) must be examined in relation to all industrial action measures. Measures involving violence or damage to the property of the enterprise are disproportionate. By contrast, peaceful picketing — i.e. attempting to persuade persons willing to work not to report for work, without the use of force — is lawful (BGE 132 III 122 E. 4.5.4; BGE 134 IV 216 E. 5.1.2). A motorway blockade by strikers in the context of a trade union action does not constitute an industrial action measure and is punishable as coercion (Art. 181 SCC), since it is directed against uninvolved third parties and falls outside the protection of Art. 28 para. 3 FC (BGE 134 IV 216 E. 5.1.2, 4.5).
3.4 Statutory Strike Prohibition for Certain Categories (para. 4)
N. 13 Art. 28 para. 4 FC empowers the legislature to prohibit certain categories of persons from striking. The Federal Council deliberately refrained from naming the «public service» as a blanket category, in order to give the legislature flexibility and to avoid a general prohibition on strikes by civil servants (BBl 1997 I 1, p. 179 f.). A strike prohibition must satisfy the general requirements of Art. 36 FC: a statutory basis, a public interest, and proportionality. Persons in indispensable public services (e.g. police, army) may be excluded from the right to strike by statute (Müller/Schefer, Grundrechte in der Schweiz, 4th ed. 2008, p. 1097 f.).
#4. Legal Consequences
N. 14 State interferences with freedom of association under para. 1 must satisfy the requirements of Art. 36 FC: they require a statutory basis, must be justified by a public interest or the protection of the fundamental rights of third parties, and must be proportionate. A blanket prohibition on trade union access to public administrative buildings that leaves no adequate alternative means is disproportionate and violates Art. 28 para. 1 FC (BGE 144 I 50 E. 6.4.2).
N. 15 A violation of the «open door» principle in the extension of collective labour agreements to the whole industry (Art. 2 para. 6 AVEG) violates the positive freedom of association of outsider associations. If the principle is not complied with, the extension must be refused; a mere ancillary condition imposing an obligation of subsequent admission is insufficient (BGE 146 II 335 E. 6). The background is the protection of positive freedom of association at the association level through Art. 2 para. 6 AVEG in conjunction with Art. 28 para. 1 FC (BGE 146 II 335 E. 6.2.1).
N. 16 In the area of private law, Art. 28 FC has an indirect third-party effect: civil courts must take freedom of association into account when assessing the lawfulness of industrial action measures within the framework of Art. 41 CO. A person who employs proportionate industrial action measures in the context of a lawful strike does not act unlawfully; a person who employs disproportionate means (violence, damage to property) is liable under Art. 41 CO (BGE 132 III 122 E. 4.4.1, 4.5.4).
#5. Contested Issues
N. 17 Subjective right or objective norm of admissibility (para. 3)? The most significant contested issue concerns the legal nature of the right to strike and lockout guaranteed by para. 3. The National Council draft and the Federal Council text expressly formulated a right («Streik und Aussperrung sind zulässig…»). The final formulation dispenses with a declaratory statement and leaves open whether para. 3 establishes a subjective fundamental right or merely an objective norm of admissibility with certain conditions. In the Council of States, rapporteur Rhinow René characterised the commission text as a formulation that reproduces «the existing legal reality» without expressly anchoring a right to strike.
N. 18 In legal doctrine, two positions are opposed. Vallender/Hettich (in: Die Schweizerische Bundesverfassung, St. Galler Kommentar, 3rd ed. 2014, Art. 28, N. 29) and Mahon (Petit commentaire, 2003, Art. 28, N. 11) see in para. 3 a genuine subjective fundamental right, which is limitable under Art. 36 FC; the conditions in para. 3 are not limitations on the fundamental right but conditions upon the fulfilment of which the right arises. The Federal Supreme Court implicitly confirmed this position in BGE 140 I 257 E. 5.2.2 by characterising the conditions of para. 3 as «conditions that must be met for the persons concerned to be able to rely on Art. 28 para. 3 FC» — i.e. as constituent elements, not as limitations. Auer/Malinverni/Hottelier (Droit constitutionnel suisse, vol. II, 3rd ed. 2013, N 1595), by contrast, argue that para. 3 contains primarily an objective regulation of the conditions under which industrial action measures are permissible, without establishing a full subjective right. The practical relevance of this dispute lies in particular in the question of whether, and what, positive protective obligations of the State follow from para. 3.
N. 19 Sponsorship of a strike by an organisation with collective bargaining capacity. Art. 28 para. 3 FC does not expressly mention sponsorship by a workers' organisation. The Federal Supreme Court nonetheless maintains that a strike must be sponsored by an organisation with collective bargaining capacity (BGE 132 III 122 E. 4.4.2; BGE 134 IV 216 E. 5.1.1). Garrone (La liberté syndicale, in: Droit constitutionnel suisse, 2001, N. 28) agrees with this, whereas Portmann (Der Einfluss der neuen Bundesverfassung auf das schweizerische Arbeitsrecht, ISAS 2002, p. 65) and part of the doctrine leave open the question of whether «wildcat strikes» could in certain circumstances still be covered by para. 3. The constitutional legislature omitted an express reference only for drafting reasons (BBl 1997 I 1, p. 179), which supports the Federal Supreme Court's position.
N. 20 Right to lockout on the same footing as the right to strike? National Council members Rechsteiner Paul (S, SG) and Gysin Remo (S, BS) criticised in the National Council the fact that the lockout was placed on the same constitutional level as the right to strike, even though it is structurally an asymmetric power resource of the employer. In legal doctrine, this criticism has been taken up by Andermatt (Liberté syndicale et droit de grève, in: Droit collectif du travail, 2010, p. 13 f.), who describes the co-equal entrenchment as legally and politically questionable. Vallender/Hettich (loc. cit., N. 30 f.), by contrast, maintain that the symmetry corresponds to the logic of freedom of association as a right of parity for both sides of the employment relationship.
#6. Practical Notes
N. 21 Assertion of freedom of association in the public service. A trade union seeking recognition as a social partner in the public service must cumulatively satisfy four conditions: (1) collective bargaining capacity (competence to conclude collective labour agreements); (2) subject-matter and territorial jurisdiction; (3) sufficient representativeness; (4) loyal conduct (BGE 140 I 257 E. 5.2.1). The criterion of loyalty is presumed; the burden of rebuttal lies with the employer (BGE 140 I 257 E. 6.2). Excessive quantitative representativeness criteria (e.g. presence in a minimum number of establishments within an institutionally heterogeneous structure) may constitute an abuse of discretion and a violation of proportionality (BGE 140 I 257 E. 6.3.4).
N. 22 Preparation and conduct of industrial action measures. Before employing industrial action measures, negotiations must be conducted in accordance with the last resort principle (para. 2). Where there is a collective labour agreement in force, the conciliation authority must be called upon in good time (cf. Art. 356 para. 3 CO). Pickets may attempt to persuade persons willing to work in a peaceful manner; any use of compulsion or physical force renders the action unlawful (BGE 132 III 122 E. 4.5.4.1). Demonstrations on public ground in the context of a strike are in principle tolerable; targeted blockade actions targeting uninvolved third parties and aimed at provoking traffic jams exceed the protective scope of Art. 28 para. 3 FC and may fulfil the criminal offence of coercion (Art. 181 SCC) (BGE 134 IV 216 E. 5.1.2).
N. 23 Extension to the whole industry and freedom of association. In the procedure for extending a collective labour agreement to the whole industry (→ Art. 110 para. 1 lit. d FC), the «open door» principle (Art. 2 para. 6 AVEG) must be observed as an expression of positive freedom of association. If the contracting associations refuse a representative outsider association admission on equal rights and obligations, the extension must be refused (BGE 146 II 335 E. 6). This is particularly relevant in industries in which one or a few associations dominate the landscape of association.
N. 24 Limitations under Art. 36 FC. Any limitation of Art. 28 FC — whether of the right of association (para. 1), the right to strike (para. 3), or by a statutory strike prohibition (para. 4) — requires a statutory basis, a ground of public interest, and proportionality (→ Art. 36 FC). The principle of proportionality requires in particular that state measures restricting freedom of association are suitable, necessary, and reasonable (BGE 144 I 50 E. 6.1). Strike prohibitions under para. 4 are only permissible for categories whose strike action would give rise to a concrete endangerment of essential state functions or of public safety and order; a general prohibition on strikes by civil servants is unconstitutional (BBl 1997 I 1, p. 179 f.; Rhinow/Schefer/Uebersax, Schweizerisches Verfassungsrecht, 3rd ed. 2016, N 1960).
#Case Law
#Freedom of Association and Trade Union Activities
BGE 144 I 50 of 6 September 2017 Trade union right of access to administrative buildings of public employers. The judgment specifies the scope of freedom of association for trade unions in the public service.
«Freedom of association under Art. 28 FC is not merely a negative freedom, but also guarantees a minimum degree of positive freedom of action, which enables the actual exercise of trade union activity. The right of access to administrative buildings is an essential component of freedom of association, since without this right trade unions cannot effectively perform their tasks.»
BGE 140 I 257 of 26 July 2014 Recognition of a trade union as a social partner in the ETH domain. The judgment specifies the requirements for recognition as a trade union entitled to negotiate.
«A trade union may invoke freedom of association to assert claims to participate in collective bargaining or to conclude a collective agreement with a public employer, insofar as it can be recognised as a social partner. This requires that it be sufficiently representative and behave loyally.»
#Right to Strike and Industrial Action
BGE 132 III 122 of 13 September 2005 Lawfulness of industrial action measures and strike pickets. The fundamental judgment defines the four requirements for lawful industrial action measures.
«Art. 28 FC concerning freedom of association has indirect third-party effect in the area of employment relations in the private sector. For an industrial action measure to be lawful, it must concern employment relations, not violate the relative peace obligation, be supported by an employees' association and respect the principle of proportionality.»
BGE 134 IV 216 of 3 April 2008 Criminal liability for motorway blockades during a strike. The judgment draws the boundaries between lawful strikes and criminal coercion.
«It is lawful to organise strike pickets provided they do not use force. As soon as strike pickets use violence to compel persons not to report to work, they go beyond the framework of the lawful exercise of an industrial action measure.»
#Declaration of General Application of Collective Agreements
BGE 146 II 335 of 11 May 2020 Principle of the «open door» in the declaration of general application. The judgment addresses the requirements for the declaration of general application of collective agreements.
«If the principle of the 'open door' (Art. 2 para. 6 AVEG) is not observed, the declaration of general application must be refused; it is not sufficient to supplement the declaration of general application with a corresponding ancillary provision.»
#Freedom of Association and Professional Associations
BGE 134 I 23 of 31 October 2007 Freedom of association and social insurance in the public service. The judgment addresses the scope of freedom of association in relation to pension funds.
Further relevant decisions concern the distinction between freedom of association (Art. 23 FC) and freedom of association (Art. 28 FC), where Art. 28 FC as the more specific provision governs employment relations between employers and employees.
#Current Developments
In more recent decisions, the Federal Court has given greater consideration to the international dimension of freedom of association, particularly by reference to ILO Conventions Nos. 87 and 98 as well as Art. 11 ECHR. The case law is developing towards increased recognition of trade union rights also in the public sector.