#1. Historical Development

N. 1 Art. 110 BV traces back to Art. 34ter old BV, which was inserted into the old Federal Constitution in 1947. The economic articles of 1947 created for the first time a comprehensive constitutional basis for labour law at the federal level (BBl 1945 I 869; BBl 1947 II 549). The revision took place after the end of the Second World War with the aim of anchoring the social policy achievements of the war years in constitutional law.

N. 2 The total revision of the Federal Constitution of 1999 largely adopted the normative content of Art. 34ter old BV unchanged (BBl 1997 I 1, 278 f.). However, Art. 110 para. 3 BV was newly added, which establishes 1 August as a paid federal holiday. This addition goes back to the popular initiative «for a work-free federal holiday», which was accepted in 1993 (BBl 1991 III 269; BBl 1993 II 1305).

N. 3 The constitutional historical development shows that employee protection was gradually expanded: from the selective Factory Act of 1877 via the economic articles of 1947 to today's comprehensive federal competence. Tschudi emphasises that the constitutional norm grants the Confederation not only an authorisation but a mandate to enact employee protection provisions.

#2. Systematic Classification

N. 4 Art. 110 BV stands in the 8th section on «Housing, Work, Social Security and Health». The norm forms, together with Art. 108 BV (home ownership and residential construction promotion), Art. 111-114 BV (social insurance) and Art. 117-120 BV (health), a system of social policy competences of the Confederation.

N. 5 The provision shows close connections to fundamental rights: → Art. 8 BV (equality before the law) for the requirements for declarations of general applicability, → Art. 23 BV (freedom of association) for negative freedom of association, → Art. 27 BV (economic freedom) for entrepreneurial activity. As a comprehensive federal competence, Art. 110 para. 1 BV acts derogatorily against conflicting cantonal law according to → Art. 49 BV (BGE 139 I 242 E. 3.2).

N. 6 Art. 110 BV is to be distinguished from → Art. 122 BV (civil law), which regulates the private law aspects of employment contracts. The delimitation is made according to the protective purpose: public law employee protection falls under Art. 110 BV, while contractual arrangements are subject to Art. 122 BV (Häfelin/Haller/Keller/Thurnherr, Bundesstaatsrecht, N 1321).

#3. Elements of the Offence / Normative Content

N. 7 Employee protection (para. 1 lit. a): The competence encompasses all measures for the protection of the physical and psychological integrity of employees. This includes working time, health protection, protection against dismissal and special protective norms for young people and pregnant women. The Employment Act (ArG) forms the central implementation of this competence.

N. 8 Collective labour law (para. 1 lit. b): The provision enables the regulation of social partnership. The scope is disputed: Cardinaux denies a basis for entrepreneurial co-determination, since the sovereign rejected corresponding proposals and such an intervention in property and economic freedom would require a clearer constitutional basis. Eichenberger, on the other hand, affirms the possibility of more extensive co-determination at the enterprise level.

N. 9 Employment services (para. 1 lit. c): The competence covers public and private employment services as well as temporary employment. The Employment Services Act (AVG) regulates licensing obligations and protective provisions for placed and temporary employees.

N. 10 Declaration of general applicability (para. 1 lit. d, para. 2): The Confederation may declare collective employment agreements generally applicable. Para. 2 establishes material limits: minority interests and regional differences must be taken into account, equality before the law and freedom of association (particularly negative freedom of association) must be preserved (BGE 146 II 335 E. 4.3).

N. 11 Federal holiday (para. 3): 1 August is the only constitutionally anchored holiday. It is «legally equivalent to Sundays in terms of employment law and is paid». This establishes a direct constitutional wage claim, also for hourly workers (BGE 136 I 290 E. 3.2).

#4. Legal Consequences

N. 12 Art. 110 BV grants the Confederation a comprehensive, concurrent legislative competence with subsequently derogatory effect. If the Confederation has legislated, conflicting cantonal law is excluded (BGE 138 I 356 E. 3.1). The cantons retain competences only insofar as federal law deliberately leaves room.

N. 13 The norm-setting delegation in Art. 110 para. 1 lit. d BV authorises the Federal Council to declare collective employment agreements generally applicable. These thereby acquire the character of law and also apply to non-union members (BGE 128 II 13 E. 3a). The declaration of general applicability must preserve the principle of the «open door» (BGE 146 II 335 E. 4.4).

N. 14 The wage claim from Art. 110 para. 3 BV is directly applicable. Employees have a right to continued wage payment for 1 August, provided this falls on a normal working day. A contractual waiver is void (Portmann/Stöckli, Arbeitsrecht, N 752).

#5. Disputes

N. 15 Scope of co-determination: The doctrine is divided on the scope of Art. 110 para. 1 lit. b BV. Cardinaux rejects a constitutional basis for genuine enterprise co-determination and refers to the rejection of corresponding initiatives by the sovereign as well as the serious intervention in property and economic freedom. Eichenberger, on the other hand, sees in the formulation «joint regulation of operational and professional matters» a sufficient basis for more extensive co-determination rights.

N. 16 Holiday compensation: It was long disputed whether Art. 110 para. 3 BV applies only to monthly wage earners or also to hourly workers. The Federal Court clarified that the constitutional wage claim applies to all employees, provided 1 August falls on a working day (BGE 136 I 290 E. 3). Streiff/von Kaenel/Rudolph criticise this restriction as too narrow (Arbeitsvertrag, N 4 zu Art. 329 OR).

N. 17 Limits of declaration of general applicability: Legal scholarship discusses how far the limits of Art. 110 para. 2 BV reach. Geiser/Müller demand a restrictive approach to protect negative freedom of association (Arbeitsrecht, § 20 N 18). Wyler/Heinzer advocate for a more generous practice in the interest of area-wide protection (Droit du travail, S. 678).

#6. Practice Notes

N. 18 In declaring general applicability, the formal requirements of the AVEG must be strictly observed. The quorum of 50% of employers and employees must be proven. The cantonal authorities must be consulted (Art. 11 AVEG).

N. 19 Companies must examine when taking over operations whether generally applicable collective employment agreements apply. The operational classification is made according to the prevailing activity (BGE 151 III 28 E. 2.3). Mixed operations are to be classified according to their focus.

N. 20 For calculating holiday compensation on 1 August: For variable working hours, the average of the last 12 months is decisive. Part-time workers receive wages according to their workload. Compensation is also due in case of illness or accident, provided there is an obligation to continue wage payments (Vischer/Müller, Arbeitsvertrag, N 6 zu Art. 329 OR).

#Caselaw

#I. Declaration of general applicability of collective labour agreements (par. 1 lit. d, par. 2)

BGE 146 II 335 of 11 May 2020
The "open door" principle is a mandatory prerequisite for the declaration of general applicability. If Art. 2 para. 6 AVEG is not complied with, the declaration of general applicability must be refused; supplementation with ancillary provisions is not sufficient.

«If the principle of the 'open door' (Art. 2 para. 6 AVEG) is not complied with, the declaration of general applicability must be refused; it is not sufficient to supplement the declaration of general applicability with a corresponding ancillary provision.»

BGE 128 II 13 of 1 January 2001
The competence to declare collective labour agreements generally applicable is based on Art. 110 FC. Against cantonal rulings on extension, public law appeal is available.

«Under Art. 110 Cst. (art. 34ter aCst.) the Confederation may legislate on l'extension du champ d'application des conventions collectives de travail (para. 1). Le champ d'application d'une convention collective de travail ne peut être étendu que si cette convention tient compte équitablement des intérêts légitimes des minorités et des particularités régionales et qu'elle respecte l'égalité de droit et la liberté d'association (para. 2).»

BGE 138 V 32 of 26 January 2012
The obligation declared generally applicable to pay pension contributions (GAV FAR) is based on sufficient legal foundations. All important legislative provisions on levies must be enacted in the form of federal acts.

«The obligation of the employer declared generally applicable to pay pension contributions to the FAR Foundation is based on sufficient legal foundations.»

BGE 139 III 165 of 1 January 2013
For the interpretation of the operational scope of collectively declared generally applicable labour agreements, the general principles of statutory interpretation apply. Operations that carry out geothermal probe drilling belong to underground construction.

«For the interpretation of provisions on the declaration of general applicability of collective labour agreements, the general principles of statutory interpretation apply.»

BGE 151 III 28 of 14 August 2024
An operation whose defining activity is the mechanical application of bitumen products on large road surfaces belongs to road construction and is subject to GAV FAR.

«An operation whose defining activity is the mechanical application of bitumen products on large (road) surfaces is assigned to the area 'road construction (including surface installation)' within the meaning of Art. 2 para. 4 lit. a AVE GAV FAR.»

#II. Employee protection (par. 1 lit. a)

BGE 136 II 427 of 15 July 2010
The Labour Act serves employee protection and should limit deviations from the prohibition on night and Sunday work to what is indispensable. The sale of retail articles in petrol station shops between 01.00 and 05.00 hours is inadmissible.

«Deviations from the prohibition on night and Sunday work must be 'indispensable' and should constitute the exception in the interest of effective employee protection.»

BGE 130 I 279 of 5 August 2003
Cantonal shop closing provisions that only permit extended opening hours when a collective labour agreement is observed are compatible with federal law. The Labour Act comprehensively regulates employee protection.

«A cantonal shop closing provision under which extended opening hours are only permitted when observing a collective labour agreement violates neither the Labour Act nor the freedom of trade and commerce.»

BGE 139 I 242 of 15 September 2004
The regulatory competence for employee protection contained in Art. 110 para. 1 lit. a FC is comprehensive and has subsequent derogatory effect. Cantonal smoking bans are compatible with federal law.

«The regulatory competence for employee protection contained in Art. 110 para. 1 lit. a FC is comprehensive and has subsequent derogatory effect.»

BGE 138 I 356 of 23 August 2012
The Labour Act as an expression of federal competence for employee protection takes precedence over cantonal law. Compensation from fee contracts may be subject to the Labour Act.

«The Labour Act as an expression of the comprehensive federal competence for employee protection takes precedence over cantonal law.»

#III. Federal holiday (par. 3)

BGE 136 I 290 of 4 May 2010
There is no general obligation to compensate hourly employees for public holidays. Exception is 1 August, which establishes an entitlement to wages provided it falls on a working day.

«There is no obligation to compensate hourly employees for public holidays, with the exception of 1 August, for which an entitlement to wages exists provided it falls on a day on which work would have been done.»

Judgment 4A_72/2018 of 6 August 2018
On public holiday compensation for hourly work. 1 August as a federal holiday is constitutionally protected and establishes an entitlement to wages for hourly workers.

«1 August is a federal holiday. In employment law, it is treated and paid the same as Sundays.»

#IV. Relations between social partners (par. 1 lit. b)

Judgment 2C_230/2020 of 25 March 2021
The federal competence for relations between the employer and employee sides includes the joint regulation of operational and professional matters as well as employee participation.

Judgment 9C_975/2012 of 15 April 2013
On the interpretation of collective labour law provisions within the framework of Art. 110 para. 1 lit. b FC. The competence of the Confederation extends to the regulation of social partnership.

#V. Employment services (par. 1 lit. c)

Judgment of the Federal Administrative Court B-434/2015 of 18 May 2016
The Employment Services Act serves employee protection and is subject to federal competence under Art. 110 para. 1 lit. c FC. Lenders must have functional business establishments.