In a recently published December 12 2016 decision, the Supreme Court held that employers are obliged to disclose employment contracts and other relevant documents relating to pay and working conditions to the 26 so-called 'cantonal tripartite commissions', which serve as control bodies for protection against wage and social dumping in Switzerland.
In order to mitigate the effects of the Free Movement Agreement with the European Union on the Swiss labour market, flanking measures were adopted in 2002 which aim in particular to protect against wage and social dumping. In this context, federal and cantonal governments were obliged to establish the tripartite commissions, which consist of employer, employee and agency representatives that monitor and control critical labour markets (eg, construction, tourism and farming).
In February 2015 the Labour Inspection Agency for the Canton of Zurich carried out an inspection on behalf of the Tripartite Commission of the Canton of Zurich on a construction site. The agency asked the construction company to disclose and submit various documents concerning the employment and working conditions (eg, work contracts, payroll accounts and working time records) of a Portuguese worker. The construction company refused, stating that the inspection right existed only on the construction company's premises.
The Zurich Administrative Court protected the construction company's position in 2016. On appeal lodged by the Federal Department of Economic Affairs, Education and Research, the Federal Court repealed the Zurich Administrative Court's decision and obliged the construction company to provide the requested documents. An interpretation of the Code of Obligations and the Federal Sending Act – which have a common history of origin – concluded that controlled companies are obliged to issue and deliver the necessary documents to the tripartite commissions. The highest court in Switzerland could see no differing intention by the Swiss legislature.
For further information on this topic please contact Thomas Rihm at Rihm Rechtsanwälte by telephone (+41 44 377 77 20) or email ([email protected]). The Rihm Rechtsanwälte website can be accessed at www.rihm-law.ch.