Facts
B. operates a market gardening business. In July 1987, he hired C., a seasonal worker, as a market gardener for a monthly salary of 2,247 CHF 60. However, on March 1, 1988, the employer's wife had C. sign a declaration stating that he accepted, for the same basic salary, to work as a gardener's assistant when the occupation as a market gardener was insufficient.
C. sued B. for the payment of 22,588 CHF 47, claiming to have devoted a portion of his activity - from 50% to 70% according to the years - to gardener's assistant work, which is better paid than the activity of market gardener according to the professional practices of parks and gardens valid in the canton of Geneva.
The Federal Tribunal partially upheld the appeal for reform filed by C.
Considerations
The Federal Tribunal considered that Art. 9 of the Ordinance Limiting the Number of Foreigners (OLE) directly obliges the employer - whether or not he has requested an authorization - to offer the foreign worker the usual remuneration in the locality for the profession concerned.
If the employer has requested a work permit, it is the responsibility of the competent administrative authority to definitively set the salary in accordance with Art. 9 OLE. If no authorization has been sought or if the tasks actually performed do not correspond or not entirely to the activity that has been authorized, the civil judge must then determine the usual…