The contractual parties
As already intimated, on the side of the employees, only a trade union can be party to a ‘CLA’, whereas, on the side of the employers, either an employers association or an individual employer can be a party.
Employers associations and trade unions
Employers associations and the trade unions have to meet certain minimum statutory requirements in order to be able to contract union rates:
- an employers association and a trade union are to be legal persons;
- an employers association and a trade union must be independent of the counter party;
- an employers association and a trade union is to be independent of any third parties (state-, or ecclesiastical authorities, etc.);
- an employers association and a trade union must have as their corporate objects, the creation of terms and conditions governing labour.
Under the law in general, an employer has the legal capacity of concluding a ‘CLA’ from his-, her, its legal constitution (for contracting minimum union rates). For this purpose, no specific statutory requirements are to be met.
Majorities of the parties
On the side of the employees, only a majority of the trade unions can be considered as a contractual party to a ‘CLA’. On the employers side, several employers associations, several employers, or all such together, can be a contractual party.
Under Art. 357, Para. 1 of the ‘CoO’, the stipulations of a ‘CLA’ immediately govern contracts of employment between the participating employers and employees for the duration of the ‘CLA’. The participants include the members of the employers associations and the trade unions, as well as employees and employers on the basis of a declaration of general commitment (‘Allgemeinverbindlicherklaerung’).
Individual employers and individual employees in the service of participating employers can affiliate to a ‘CLA’, with the permission of the contractual parties (comp. Art. 356b of the ‘CoO’). The ‘CLA’ itself can then regulate such affiliation more closely.
Declaration of general commitment (‘Allgemeinverbindlicherklaerung’)
The general commitment (‘Allgemeinverbindlichkeit’) of a ‘CLA’ is restricted to trades and industries with many small enterprises (e.g. hairdressing saloons or the catering trade). The Swiss Federal Government is responsible for the general commitment and/or the government of the Swiss Canton involved, with the approval of the Swiss Federal Government. The statutory basis is to be found in the Swiss Legislation governing declarations of general commitment under ‘CLAs’ dated 28 September 1956 ‘Allgemeinverbindlicherklaerung von Gesamtarbeitsvertraegen’).
In addition, legal obligatory- or membership liabilities can obtain, for compliance with the stipulations of a ‘CLA’. A ‘CLA’ or the by-laws of an employers association can include stipulations whereby contractually bound employers are under a duty to apply the stipulations negotiated in a ‘CLA’ to contracts of employment with non-participating employees. Furthermore, the parties to an individual contract of employment can agree that a certain ‘CLA’ should apply to their immediate contractual employment.