The employee representative body

I would like, right at the beginning of this discussion, to clear up a misunderstanding that is frequently encountered in practice about the role of the employee representative body: no, it is not a ‘mini-union’ within the company that has to conduct a kind of opposition policy against the management. It is instead a kind of interface between the management and the workforce. It is the point of contact between the management and the employees and is primarily responsible for exercising the participation rights that employees have under various Swiss laws and regulations.

There are three types of participation rights, and these vary in intensity depending on the statutory provision. The right to be informed involves a duty of notification on the part of the employer, under which the employer must inform the employee representative body before taking certain actions. The right to be consulted requires the employer to inform the employee representative body about its plans and to give it an opportunity to comment on the plans and to make suggestions. The strongest participation right is co-decision, which requires the true consent of the employee representative body. If a company does not have an employee representative body, it must implement these participation rights with the entire workforce, and (depending on the size of the company) this may be a difficult and impractical undertaking.

Under the Mitwirkungsgesetz, the employee representative body must cooperate with the management in accordance with the principle of good faith and is responsible for protecting the common interests of the employees. It is therefore never responsible for protecting their individual interests – e.g. if the company dismisses an employee. The law regulates the election of the employee representative body, protects its members against discrimination on the basis of their mandates and prohibits their work from being hindered. It also regulates the employee representative body’s duty of confidentiality (as it is in practice often entrusted with delicate information) and requires that its work takes place during working hours.

The various scenarios in which participation rights will become relevant are not set out in the Mitwirkungsgesetz itself but (as mentioned above) in various Swiss laws and regulations. A well-known example is the obligation to inform and consult under Article 333a of the Swiss Code of Obligations (Obligationenrecht, OR) in the event of a transfer of a business or part of a business. Participation rights are not always so easy to identify. The following example illustrates that it is sometimes quite difficult to identify them.

If the [employee] sets up a surveillance camera in the company, a duty to inform and consult applies in principle. However, the relevant legal principle, namely Article 26 (‘Monitoring of employees’) of Regulation 3 under the Swiss Employment Act (Verordnung 3 zum Arbeitsgesetz, ArGV3), is silent about these participation duties. These arise from the fact that ArGV3 aims to protect employees’ health and camera surveillance is closely related to this because it could affect employees’ mental health. The duty to inform and consult arises from Articles 5 and 6 ArGV3, which require the employer to inform and consult the employees about such measures in good time and comprehensively. The company’s duty to inform and consult is then performed via the employee representative body, if such a body exists.

This example shows that merely identifying possible participation rights represents a major challenge for both the management and the employee representative body. The management must, of course, comply with the applicable participation duties on its own initiative, as well as with all other applicable laws and regulations that are relevant to it. However, a well-established and capable employee representative body should also be proactive and be able to recognise participation rights on its own initiative and to address the management about them. This will benefit the company and its corporate culture significantly and will help the employer to comply with the legal requirements.

In practice, medium-sized companies (with 50 to 250 employees) or even large companies (with over 250 employees) that do not have employee representative bodies are often faced with having to comply with statutorily mandated participation duties. Such employers feel the disadvantage of not having an employee representative body the most. Experience has shown that the larger the company, the more problems the lack of an employee representative body causes. This is especially true if not all employees work with a PC and have an email address through which they can in any case exercise their participation rights, so that an employee meeting (or even several meetings, if this is necessary for logistical reasons) becomes imperative.

We recommend that companies above a certain size (from around 80 employees, depending on their structure) seek advice in good time on establishing an employee representative body, regardless of any intended employer measure that participation rights might be relevant to. Although it is permissible for the employer to ask the employees to elect an employee representative body in view of such a measure, and the employees are unlikely to refuse to do so, we do not recommend such an approach (unless there is no alternative). This is because appointing an employee representative body in view of an employer measure does not always provide the best basis for further cooperation with the body. Also, the body’s lack of practical experience and training may prevent it from exercising the relevant participation rights adequately.