How are market wages applied?

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131 II 393


29.Excerpt from the judgment of the II. Public Law Department i.S. X. and Mitb. against Stiftung Spitalfonds Grenchen and Stiftung B rgerspital Solothurn as well as the State of Solothurn and administrative court of the canton of Solothurn (administrative court complaint)
2A.141 / 2004 of April 8, 2005


Art. 8 cpv. 3 Cost., Art. 3 e 5 LPar; discriminazione fondata sul sesso; criteri di valutazione di un posto di lavoro; attribuzione a classi di salario inferiori; presa in considerazione di fattori congiunturali o inerenti al mercato del lavoro; regole di trasferimento.
Legittimazione passiva del Cantone in ambito di domande di accertamento, rispettivamente di richieste di prestazioni fondate sulla legge sulla parit e rivolte contro enti ospedalieri dipendenti dal Cantone ma giuridicamente autonomi (consid. 3).
Valutazione di un posto di lavoro sulla base di un'analisi semplificata della funzione; metodo e valutazione uniformi dei criteri per tutte le funzioni; problematica della ponderazione dei singoli criteri (consid. 6).
Inammissibilit dell'attribuzione a classi di salario inferiori (consid. 5.2), mediante la quale il datore di lavoro vuole scostarsi dal risultato della valutazione del posto di lavoro a scapito del lavoratore (precisazione della giurisprudenza; consid. 7)
Distinzione fra trasferimento in una classe di salario superiore in base all'anzianit e quello in base all'ammontare preciso del salario (consid. 5.2 e 8.1). Quest'ultimo genere di trasferimento pu avere come effetto il perpetuarsi della discriminazione preesistente (consid. 8.2-8.4).


X. and 95 participants were formerly or currently working at the Olten Cantonal Hospital in various functions as nurses, in occupational therapy or as midwives. On December 7, 2000, they brought an action against the state of Solothurn at the administrative court of the canton of Solothurn (hereinafter: administrative court) (proceedings there 2000/10). They asserted wage discrimination based on Art. 8 BV and the federal law of March 24, 1995 on equality between women and men (Equal Opportunities Act, GlG; SR 151.1) and demanded payment of the difference in pay for the Past and future time.
On May 28, 2002, the administrative court commissioned Prof. M., ETH Zurich, with the preparation of an ergonomic report. This was received on November 14, 2002. The parties were given the opportunity to put additional questions to the expert, who answered the questions with an additional expert opinion of July 24, 2003.
Furthermore, the administrative court ruled that for the time being it would make a partial judgment on the functions of dipl. Nurse DN 2 and dipl. Nurse DN 2 ward manager, since the other functions are dependent on the salary of these functions.
In a judgment of January 28, 2004, the administrative court dismissed the lawsuit against the State of Solothurn insofar as it concerned the functions of nurse DN 2 and ward manager.
Also on December 7th, 2000, Z. and 11 participants filed an analogous lawsuit at the administrative court (proceedings 2000/13 there) against the State of Solothurn and the Grenchen Spitalfonds Foundation. The plaintiffs previously or currently worked at Grenchen Hospital in various roles as nurses, in occupational therapy or as midwives.
On the same day, Y. and 64 participants also filed a similar lawsuit at the administrative court (proceedings 2000/6 there) against the State of Solothurn and the Solothurn Citizens Hospital Foundation. You were formerly or currently working as a nurse at the Solothurn Citizens Hospital in various positions.
The further course of proceedings 2000/6 and 2000/13 took place parallel to proceedings 2000/10 relating to the Olten Cantonal Hospital.
In its rulings of January 28, 2004, the administrative court dismissed the lawsuits against the State of Solothurn, as it was not passively legitimized in proceedings 2000/6 and 2000/13; The complaints against the Foundation Spitalfonds Grenchen and the Foundation B rgerspital Solothurn were dismissed insofar as they concerned the functions of nurse DN 2 and ward manager.
X. and 88 participants filed an administrative court complaint with the Federal Court on March 4, 2004 (case 2A.141 / 2004) against the judgment in case 2000/10 with the following applications:
"1. The contested judgment of the administrative court of the canton of Solothurn of January 28, 2004 is to be set aside.
2. The respondents are to be sentenced to pay the plaintiffs in future and r To be paid retrospectively since when legally plus interest since when legally to be paid, including subsequent payment of the corresponding pension fund contributions to the plaintiffs' pension accounts.
2.1 It should be noted that the implementation of the salary revision with the negative class decision and the selected transfer regulation was discriminatory and the matter should be referred back to the lower court for the calculation of the wage entitlement.
3. The respondents are to be condemned to give the plaintiffs the remuneration they are entitled to after the elimination of the discriminatory effects of the individual wage class classification in accordance with Art. 8 Para. 3 BV and Equal Opportunities Act in the future and retrospectively since when and from when right to pay, including subsequent payment of the corresponding pension fund contributions to the plaintiffs' pension accounts.
3.1 It should be noted that the wage class classification was discriminatory and the matter should be referred back to the lower court for the calculation of future and retrospective wage entitlements.
4. Eventual rez. 2 and 3: The matter is to be referred back to the lower court for reassessment. "
In terms of procedure, they apply for a grace period to be granted to supplement the complaint, since a document mentioned in the file directory and in the judgment under appeal was not in the files.
Also on March 4, 2004, Z. and 9 people involved filed an administrative court complaint (procedure 2A.142 / 2004) against the judgment 2000/13 with the same legal requests and the additional request that the state of Solothurn was legitimized to be passive r establish the action before the administrative court. A similar administrative court complaint (procedure 2A.143 / 2004) was then filed by Y. and 61 participants against the judgment 2000/6.
In a letter dated April 27, 2004, the presiding member of the Second Public Law Department of the Federal Supreme Court gave the complainants the opportunity to comment on the question of a second exchange of correspondence. The complainants commented on this in a letter dated May 7, 2004.
The Federal Supreme Court partially approves the complaints and refers the matter back to the administrative court for reassessment within the meaning of the considerations.



3. In proceedings 2A.142 / 2004 and 2A.143 / 2004, the complainants apply for the state of Solothurn to be legitimized for the action before the administrative court. The administrative court denied the passive legitimation on the grounds that the wage debtors in these proceedings were the Grenchen Spitalfonds and Solothurn Citizens Hospital, not the canton. The complainants do not deny this. They claim, however, that the hospital authorities are legally obliged to adopt the cantonal salary regulations for state staff. The State of Solothurn is solely responsible for the discriminatory regulations.
In the proceedings before the administrative court, the complainants primarily submitted a request for benefits. Naturally, this can only be directed against the person who owes the service (cf. ELISABETH FREIVOGEL, in: Margrith Bigler-Eggenberger / Claudia Kaufmann [Ed.], Commentary on the Equal Opportunities Act, 1997, No. 104 on Art. 3 GlG; HANSJ RG SEILER, equal wages for work of equal value, ZBl 104/2003 p. 113 ff., In particular p. 119). In the present case, these are the two hospital foundations. Passive legitimation of the canton would be given if the regulations issued by it were challenged as such, if necessary also for a mere determination request (see judgment 1A.52 / 1999 of June 16, 1999, E. 2; ELISABETH FREIVOGEL, loc. Cit., N. 22-27 on Art. 7 GlG). In the meantime, the complainants had also linked any requests made to establish that the regulations made by the canton violated Art. 8 Para. 3 BV and the Equal Opportunities Act with a request for benefits. Therefore, the canton is not passively legitimized. As a result, the administrative court rightly dismissed the claims.

4. The appellants complain that their right to be heard was violated because they could not have commented on document 42a, which was cited as central evidence in the judgment under appeal, since they were not aware of this document in the administrative court proceedings.
The administrative court argues that the document in question was submitted as an attachment to the canton's response to the complaint in a parallel lawsuit conducted by the same lawyer. In addition, the document was not cited in the judgment under appeal, but only in the opinion M., the conclusions of which were referred to in the judgment.
It remains to be seen whether this procedure constitutes a violation of legal hearing: In their statement of May 7, 2004, the complainants state:
"A second exchange of correspondence regarding the substantive content of the administrative court complaint and the consultation can be dispensed with, since the subsequent knowledge of file 42a would not fundamentally change the reasons for the complaint."
According to their own statements, the fact that the document was not accessible to the complainants when the administrative court complaint was drawn up did not cause them to suffer any disadvantage. It is therefore not necessary to set aside and reject the contested judgment due to a violation of the right to be heard, especially since the complainants themselves do not primarily demand a rejection, but a substantive assessment (cf.HANSJ RG SEILER, Farewell to the formal nature of legal hearing, SJZ 100/2004 p. 377 ff., In particular p. 383 f.).


5.1 It is not disputed that the functions of the nurse and ward manager to be assessed here are women-specific functions. A wage difference to equivalent male or gender-neutral occupations can therefore constitute wage discrimination prohibited by Art. 8 Para. 3 BV or Art. 3 and 5 GlG. It is disputed whether this is the case here.

5.2 In the 1990s, the canton of Solothurn carried out a revision of the salary system for all state staff (so-called BERESO project) (see BGE 125 II 385; BGE 124 II 436, 529; judgments 2A.200 / 2001 of June 18, 2002 and 2A.593 / 1998 of June 28, 1999). A work value was determined for a number of key positions on the basis of an analytical job evaluation in the form of the simplified functional analysis (VFA) based on 6 criteria. This resulted in 300 points for the DN 2 nurse function (formerly AKP nurse) and 364.5 for the ward manager function (formerly AKP ward nurse). Based on the results of the job evaluation, the Cantonal Council classified the various functions in wage classes. The scores mentioned would have corresponded to wage classes 14 and 17. For most functions in the care sector, however, the cantonal council made a so-called minus class decision, so that it placed the nurse function DN 2 in the lower wage class 13 and the ward manager function in wage class 16. In addition, employees who were raised to a higher wage class compared to the old wage system were not transferred to the new wage class with the previous level of experience (so-called transfer according to seniority). Rather, they were only classified in the experience level which, compared to the previous gross wage of the old wage class, corresponded in francs to the next higher experience level of the new class (so-called transfer to the Swiss franc amount; see also E. 8.1 below).

6. The complainants first object to the implementation of the simplified functional analysis (VFA). If it had been carried out in a non-discriminatory manner, the job value for the DN 2 nurse would have been 351 points, which would have corresponded to wage class 16. The administrative court considered that the original classification in wage class 14 was non-discriminatory. It must therefore be checked whether the job evaluation with the help of the VFA has resulted in gender discrimination.

6.1 According to the case law of the Federal Supreme Court, the VFA is not discriminatory as such (BGE 124 II 409 E. 10d p. 430). The Federal Supreme Court has repeatedly based its own assessment on the VFA carried out as part of BERESO (BGE 125 II 385