Obligation to pay FAR contributions by a temporary employment agency in the absence of subjection to the CLA FAR

Facts

The Foundation for Flexible Retirement in the Main Construction Sector (FAR Foundation) is responsible for the implementation of the Collective Labour Agreement for Flexible Retirement in the Main Construction Sector (CLA FAR). The CLA FAR was declared partially generally binding by decision of the Federal Council on 5 June 2003 (GBA CLA FAR) and has subsequently been extended and adjusted several times.

The [A. AG] , a temporary employment agency, supplied employees to the [B. AG] between 2015 and 2017, which operated in the field of pollutant remediation. The FAR Foundation claimed payment of FAR contributions from the [A. AG] by writ of 10 May 2022 for the years 2015 to 2017, on the grounds that the [B. AG] fell within the scope of the GBA CLA FAR. The [A. AG] contested this, arguing that the [B. AG] was not subject to the scope of the GBA CLA FAR, as its activities were not primarily focused on structures CO parts thereof. The Insurance Court of the Canton of Aargau dismissed the claim by judgment of 16 March 2023.

The FAR Foundation then filed an appeal with the Federal Supreme Court, alleging in particular a violation of the right to be heard and incorrect interpretation of the legal bases for subjection to the CLA FAR. The [A. AG] requested dismissal of the appeal.

Considerations

The Federal Supreme Court first examines the findings of fact of the lower court and applies the law ex officio. It finds that the respondent was not a member of a contracting association and had not acceded to the CLA FAR. The question of whether the [B. AG] falls within the scope of the GBA CLA FAR is decisive for assessing the contribution liability of the [A. AG] , since, pursuant to Art. 20 para. 3 RecA, the latter is only liable for FAR contributions if the user undertaking of the supplied personnel falls within the scope of the GBA CLA FAR.

The lower court concluded that the [B. AG] did not fall within the scope of the GBA CLA FAR during the relevant period, as its activities were not primarily focused on structures CO parts thereof. The Federal Supreme Court confirms this finding and states that the FAR Foundation bears the burden of proof for the facts giving rise to the claim. As the files do not contain sufficient evidence that the [B. AG] falls within the scope of the GBA CLA FAR, the claim brought by the FAR Foundation must be dismissed.

The FAR Foundation argues that the [B. AG] had acceded to the CLA FAR pursuant to Art. 356b CO. The…