Applicability of the Employment Act to 24-hour care in private households

Facts

The Swiss Association of Public Service Personnel (VPOD) filed a complaint against a ruling by the Department of Economics, Social Affairs and Environment of the Canton of Basel-Stadt. The Department had determined that the Employment Act and its ordinances do not apply to employees of A. AG who are employed for 24-hour care in private households. The Federal Supreme Court had to examine whether Art. 2 para. 1 let. g of the Employment Act, which exempts private households from the applicability of the Act, is also applicable to tripartite relationships as in the present case.

Considerations

The Federal Supreme Court concluded that Art. 2 para. 1 let. g EmpA is only applicable to bipartite relationships in which the employee is directly employed by the private household. In the case of tripartite relationships such as personnel leasing, this exception provision is not applicable. Because in such cases, it is possible to monitor compliance with working and rest periods at the care organization without intruding into the privacy of the household owner. Furthermore, the work…