Facts
A. (the respondent) operates a piecework company in the construction industry. The Parity Professional Commission for the Construction Industry of the Canton of Schwyz (the appellant) had conducted a payroll audit for certain periods at the respondent's premises and found that he had violated various provisions of the National Collective Bargaining Agreement for the Swiss Construction Industry (LMV) and had thereby withheld monetary benefits of over CHF 909,567.15 from his employees. The appellant then imposed a contractual penalty of CHF 300,000 on the respondent and claimed additional costs.
The District Court of Höfe partially upheld the claim and ordered the respondent to pay CHF 100,900. On appeal by the respondent, the Cantonal Court of Schwyz reduced the contractual penalty to CHF 24,000 and ordered him to pay CHF 34,900 plus a portion of the court costs.
The appellant appeals against this decision of the Cantonal Court of Schwyz to the Federal Supreme Court and requests that the contractual penalty be set at CHF 90,000.
Considerations
The Federal Supreme Court examines whether the above-scale wage paid by the respondent could offset the difference between the holiday compensation calculated by the respondent and that provided for in the National Collective Bargaining Agreement.
The Federal Supreme Court states that for the question of whether the minimum requirement of Art. 329d para. 1 CO has been complied with, the only decisive factor is whether the employee has received the same amount of pay for the duration of his holidays as he would have received if he had worked during that time. However, the focus here is primarily not on compliance with the law, but with the provisions of the Collective Bargaining Agreement (CBA).
Pursuant to Art. 357 para. 2 CO, agreements in an individual employment contract are null and void if they violate the mandatory provisions of a CBA and are replaced by its provisions. However, deviating agreements to the benefit of the employee…