Facts
On February 16, 2015, the Zurich Canton Labour Inspection Office (AKZ) conducted a review of the wages and working conditions at a construction site. During this review, the Portuguese national [A.], an employee of X AG, was inspected. The AKZ requested that X AG provide various documents regarding the wages and working conditions of [A.], which X AG did not do.
The Office for Economy and Labour of the Canton of Zurich (AWA) then ordered that B., the sole signatory and sole member of the Board of Directors of X AG, must provide copies of the employment contract, wage statements, and work time reports of employee A. X AG successfully appealed this order to the Administrative Court of the Canton of Zurich.
The Federal Department of Economic Affairs, Education and Research (WBF) then filed an appeal in public law matters with the Federal Supreme Court.
Considerations
The Federal Supreme Court concluded that the tripartite commissions, pursuant to Art. 360b(5) of the Swiss Code of Obligations (OR), have a right to obtain all documents necessary for conducting their investigations. This is derived from the legislative history, the systematic classification of the provision, and the provisions of Art. 7(2) of the Posting of Workers Act (EntsG).
The Federal Supreme Court explained that the tripartite commissions have the statutory mandate to monitor the labor market and investigate the prevailing wages in a particular industry. To fulfill this mandate, they must be able to obtain the necessary information, which implies an obligation of the controlled companies to disclose…