The secondment to Switzerland of employees whose employer is based abroad is administrated by the Federal Law of 8 October 1999 concerning minimum wage and working conditions for posting workers to Switzerland and side measures (LDist) and by the Ordinance of 21 May 2003 concerning posting workers in Switzerland (ODist).Table of contents
The competent cantonal authorities must be notified through the dedicated platform at least 8 days before the beginning of the working activity in Switzerland. There are some exemptions related to the notification obligation:
every company can benefit from the exemption from the notification obligation for 8 days per calendar year.
These exempted 8 days refer both to the posting company and the posting workers. The exemption does not apply for activities in the following fields:
Every company has 90 days per calendar year for the notification procedure; once the days at their disposal are over, it is necessary to request a working permit to serve in Switzerland.
There are some derogations according to which it is possible to avert the 8 days in advance period (in these cases, the notification must be sent maximum 1 day in advance of the beginning of the activity).
To be requested from the competent social insurance agency in the home country.
A national minimum wage level does not exist in Switzerland.
Posting companies must meet the minimum wage levels defined by the collective agreements applicable to each canton.
For this reason, Arletti & Partners suggests the processing of a gross notional payslip for every secondment, according to the period of permanence in Switzerland.
In Switzerland, subcontracting is allowed under the following conditions:
The Swiss legislation governing the redistribution of work described above (second-tier subcontracting) places a duty of care on the primary contractor when assigning work to subcontractors (Sec. 4. Art 8 O Dist). The primary contractor’s obligations include ensuring that the subcontractors entrusted with the performance of the work under the contract are likely to comply with working and wage conditions.
To be considered as such, self-employed workers must meet the requirements laid down by Swiss law (independence of means, autonomous organisation of work, etc.). During their secondment, these workers must be able to provide documents attesting to their self-employed status in the event of a check.
If the competent cantonal authority does not consider that the principle of autonomy of the self-employed worker is satisfied, the latter may be assimilated as an employee of the client.
Another issue concerns the prohibition to work in conjunction with the client’s employees; as confirmed several times by the Labour Oversight Office, this situation is not permissible under Swiss Law, as it implies the non-satisfaction of the worker’s principle of autonomy (the worker be immediately considered as pseudo autonomous and, consequently, as a client’s employee).
Failure to comply with the minimum time limit of eight days for submitting the posting notification is punishable by a fine of up to CHF 5,000. Violations in terms of wage and working conditions can result in penalties for the employer up to CHF 30.000 and the prohibition to work in Switzerland.
In case of reiterated violations, the ban can last up to 5 years and the company could be included in a public black list by the Swiss authorities.
Studio Arletti & Partners has been serving companies and individuals in their global mobility assignments for over 20 years. For further information or to get a quotation from our Experts, have a look at our dedicated web page about posting workers to EU, contact us via the form below, or directly schedule a call with our Experts!
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