Most Read Contributor in Switzerland, February 2017
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
(e.g., 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
(e.g., 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
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Court repealed the Zurich Administrative Court's decision and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.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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