Facts
In this case, the issue was the compensation for overtime work of a professional motor vehicle driver. The parties had agreed in the employment contract that the working hours would be flexible and that the gross salary of CHF 5,000 would be "including overtime". It was disputed to what extent any overtime had already been compensated by the salary.
The lower court had decided that overtime was the hours between the agreed working hours and the legally permissible maximum working hours of 46 hours per week. These overtime hours could be excluded from the salary supplement in writing. However, overtime, i.e., work beyond the maximum working hours, must be compensated with the basic salary and the legally prescribed supplement.
The appellant argued that the terms "maximum working hours" in the relevant laws and ordinances were not identical. The permissible overtime under the Chauffeur Ordinance constituted overtime work for which the compensation could be waived.
Considerations
The Federal Court dismissed the appeal. It stated that the terms "maximum working hours" in the Employment Act and the Chauffeur Ordinance were generally equivalent. The Chauffeur Ordinance regulates not only the permissible working hours but also their compensation. It refers to the Code of Obligations, according to which overtime work must be compensated with the basic salary and a salary supplement of at…