Contribution obligation of the temporary employment agency for the flexible early retirement in the main construction industry and cumulative conditions for exceptions

Facts

On 12 November 2002, the Swiss Contractors’ Association (ShipBO), the GBI Trade Union Construction & Industry (now Unia) and the SYNA Trade Union (now Syna) concluded the Collective Employment Agreement for Flexible Early Retirement in the Main Construction Industry (CEA FER), whose implementation was entrusted to the Foundation for Flexible Early Retirement in the Main Construction Industry (Foundation FER). The Federal Council declared the CEA FER partially generally binding by decision of 5 June 2003. On 1 September 2014, the CEA FER was replaced by the Collective Employment Agreement for Early Retirement Model in the Swiss Building Envelope Industry (CEA ERM Building Envelope), whose implementation is also entrusted to the Foundation ERM Building Envelope. The declaration of general applicability of the CEA ERM Building Envelope was made by decision of the Federal Council of 30 January 2015.

The A. GmbH (A.) operates a temporary employment agency for temporary and permanent positions and is registered as a private employment agency and temporary employment agency with the State Secretariat for Economic Affairs SECO. It assigned employees in particular to the B. AG (façade construction, roofing and carpentry work) and the C. GmbH (sculptor and stonemason work, tombstones, construction and renovation work). The Foundation FER carried out an employer inspection at A. and identified discrepancies between the reported and actual wage sums. A. objected to the contribution demands of the Foundation FER.

With a claim filed on 18 July 2022, the Foundation FER requested that A. be ordered to pay pension contributions for the period from 1 January 2013 to 31 December 2016 amounting to a total of CHF 84,770.90 (plus interest) and control costs of CHF 2,753.35. The Administrative Court of the Canton of Bern granted the claim with a judgment of 4 October 2023 and ordered A. to pay the amounts claimed. A. then filed an appeal in public law matters with the Federal Supreme Court and requested the annulment of the lower court’s judgment CO its reversal and the dismissal of the claim. The Foundation FER requested the dismissal of the appeal.

Considerations

The Federal Supreme Court first examined whether the obligation of the temporary employment agency to pay contributions under Art. 20 para. 3 Employment Agencies Act (RecA) depends on whether the user company falls within the scope of the generally binding CEA FER. The appellant argued that a purely contractual subjection of the user company to the CEA FER was sufficient. The Federal Supreme Court rejected this view and stated that the declaration of general applicability of a CEA defines its scope of application normatively and is published in the Federal Gazette. Such a regulation is to be considered as known, so that the obligation of the temporary employment agency to pay contributions depends on whether the user company falls within the scope of application defined in the declaration of general applicability. A mere voluntary subjection of the user company to the CEA FER is not sufficient, as this would amount to a contract in favour of a third party and there would be no legal basis for such an obligation.

The Federal Supreme Court then addressed the question of whether the conditions for an exception from the obligation to pay contributions listed in Art. 48c para. 2 Employment Agencies Ordinance (RecO) are to be understood cumulatively CO alternatively. The appellant argued that the mere existence of one of the conditions listed in lit. a–c was sufficient. The Federal Supreme Court ruled, however, that the conditions must be met cumulatively. This interpretation is based on the wording of the provision, the use of the conjunction "and", the legislative intention and the purpose of the regulation, which requires a restrictive application of exceptions. The delegation provision in Art. 20 para. 3 RecA only grants the Federal Council leeway to regulate the minimum employment duration, but not to create additional alternative exemption provisions.

Finally, the Federal Supreme Court addressed the…