Co-determination of staff when changing pension fund
On 2 June 2020, the Swiss Federal Supreme Court published a ruling (9C_409/2019) on the subject of “Employee involvement in a change of pension scheme”. In doing so, it underlined that the staff and the employer must reach a joint decision.
- Art. 11 para. 3bis BVG states that the dissolution of an existing affiliation to a benefit scheme and the rejoining of a new benefit scheme must be carried out by the employer in agreement with the staff (or an employee representative determined in accordance with the Participation Act). All staff must be actively involved in the decision-making process.
- The staff must agree to the change of pension scheme before the employer terminates the contract. According to the Federal Supreme Court, it is therefore not enough to inform or consult the staff only after the termination. It is also not enough for the Administrative Commission to confirm the termination, as this is not an employee representation under the Participation Act.
- Without timely approval, the employer’s notice of termination is invalid. The transferring pension fund must check whether the consent of the staff has been obtained.
- Article 11 paragraph 3bis BVG also requires the consent of the staff to rejoin a new pension scheme.
- Only active insured persons are to be included in the decision-making process. Pension recipients are not included. Furthermore, this ruling does not affect the more extensive pension schemes in the superobligatory area (such as management foundations).
The Federal Supreme Court ruling of 5 May 2020 (9C_409/2019) can be found under this link.