Validity of forms of work by which the employer calls on the worker in case of necessity and compensation for on-call duty performed outside the company

Facts

X. worked from January 15 to October 9 (or 17), 1996 as a laborer for the company Y. GmbH. After the end of the employment relationship, X. claimed that the employer had made him work fewer hours than what was guaranteed by the national collective bargaining agreement for the main construction sector in Switzerland (CBA). He therefore claimed payment of the difference at the normal hourly rate and filed an action with the Chamber of Commerce of the Lake District for the payment of CHF 17,987.65. The Chamber of Commerce granted the request up to CHF 1,834.70. The claimant then appealed to the Cantonal Court of Fribourg, which awarded him CHF 1,914.

Considerations

First, the Federal Tribunal rejects the classification of the employment contract as "on-call work", considering that the law does not oppose flexible forms of employment where the employer calls on the worker as needed. The CBA also does not contain an explicit prohibition of this type of employment form in the construction sector.

Next, the Federal Tribunal examines the issue of compensation for on-call duty performed outside the company. It considers that this availability time must be remunerated, even if it does not necessarily have to be at the same rate as actual work.…