Wage Claim under the National Collective Bargaining Agreement for the Hospitality Industry (L-GAV)

Facts

[K.] worked as a service employee from November 1, 1981 to January 31, 1985. She had agreed with her employer [L.] on an exclusive commission of 18% of sales. In October 1985, [K.] filed a claim against [L.] based on the L-GAV, seeking payment of CHF 23,000 (later reduced to CHF 20,855.60), as she claimed the fixed wage portion of CHF 450 or CHF 510 per month owed under the L-GAV.

The District Court of Lucerne-City upheld the claim on October 27, 1986 in the amount of CHF 6,679 plus interest. On appeal by both parties, the High Court of the Canton of Lucerne confirmed the first-instance judgment on August 17, 1989. The federal appeal filed by [K.] against the High Court's judgment was dismissed by the Federal Supreme Court, insofar as it entered into the matter.

Considerations

The Federal Supreme Court stated that according to Art. 32 L-GAV, the employee under direct commission-based remuneration is entitled to a commission of at least 13.04% of the gross sales achieved, as well as a fixed wage portion of at least CHF 450 or CHF 510 per month.

Pursuant to Art. 357 para. 2 CO, the provisions of a collective bargaining agreement may only be deviated from if the corresponding agreements have a favorable effect on the employee. The comparison of favorability must be made by comparing the overall wage provisions…