Labor law (Switzerland)

The labor of Switzerland includes all norms that regulate the employment of some kind. The regulation of employment by private employers is largely standardized at the federal level, while a large number of cantonal laws still prevail in public-law employment relationships. In particular, civil law standardization is spread across a large number of laws. Of greater importance are the new Federal Constitution of 1999 , the Code of Obligations , the Labor Act and, in the public sector, the Federal Personnel Act .

Legal sources

The following laws define the framework under which people may be employed in Switzerland:

The new federal constitution regulates some normative principles as well as the competencies of the individual regional authorities, namely the competences of the federal government and the cantons.
Basic is the individual employment contract law, which is written down in the Code of Obligations (OR) . In principle, employer and employee agree on their employment contract as an option , i. H. in free mutual expression of will. However, some basic legal norms must be observed, which have priority in the event of a dispute. In addition to the individual employment contract law of the OR, the public law provisions and any applicable collective employment contract (GAV) must be observed. The general employment contract is also laid down in the OR in its framework conditions.

The federal law on the general binding declaration of collective employment agreements regulates the official possibilities to declare collective employment agreements binding also for industries and companies that have not voluntarily joined the collective employment agreement.

The labor law is also mandatory public law, which guarantees the employee side minimum protection standards with regard to working hours. Today it is usually undercut by collective employment contract regulations.

In Switzerland, health protection at the workplace is in part not terminologically regarded as labor law, but is dealt with within the framework of accident insurance law ( SUVA ).

The working conditions of foreign employees (in terms of minimum employment contract standards) who are only posted to Switzerland for individual projects / work assignments are regulated in the Posting Act. It should be v. a. Preventing wage and social dumping .

The federal law against undeclared work is intended to prevent abuse by employers and employees in this regard.

If the state acts as an employer, the provisions of public law must be observed. The private law provisions only come into play in a subsidiary or analogous manner. Since the cantons are largely autonomous in structuring their administrative law , all cantons have their own regulations for public-law employment relationships. At the federal level, the Federal Personnel Act (BPG) in particular and, as far as liability issues are concerned, the Liability Act (VG) must be observed.

federal Constitution

With the new Federal Constitution, in addition to the few existing provisions relating to the employment relationship, a number of new, in some cases very important, provisions have found their way into the formal constitutional law of Switzerland. The provisions anchored in the constitution are for the most part not self-executing, which means that they cannot be sued for on an individual basis. Excepted from this are the basic rights, which are in part also important for labor law. Furthermore, the laws and ordinances issued by the federal government cannot be checked for their constitutionality in a general-abstract manner, which further limits the effect of the constitutional norms.

The first provisions of the constitution relating to labor law can be found in the individually enforceable section of fundamental rights. Art. 27 guarantees economic freedom in paragraph 1 and specifies this in paragraph 2 insofar as the free choice of profession and free access to private sector activity are expressly guaranteed. The market economy orientation of Swiss economic policy is expressed in this article. In Art. 28 freedom of association is guaranteed, employees and employers are therefore expressly permitted to set up interest groups. The most prominent provision, however, can be found in paragraph 3 of said article, where the right to strike is expressly guaranteed. This is of great importance as this provision was preceded by a decade-long dispute over whether strikes were permissible. In contrast to the neighboring countries, the strike in Switzerland was never legally regulated before the new federal constitution came into force.

Further provisions relating to labor law can be found in Section 7 (Economy) of Chapter 2 (Responsibilities). In Article 94, Paragraph 1, the economic freedom already guaranteed in the fundamental rights section is repeated and the Confederation and the cantons are imposed as a principle of their economic policy. More important is Article 110, Paragraph 1, which stipulates that the federal government can issue regulations on work. In lit. a to d specifies what exactly may be regulated by the federal government. In particular, this is the protection of employees, the relationship between employer and employee, job placement and the general binding declaration of collective employment agreements. The wording of the article, according to which the federal government can issue regulations, indicates a competence norm with retrospective derogatory effect. This means that the federal government is authorized to regulate the specific area, but it is not obliged to do so. This also means that the cantons are authorized to enact regulations in this area themselves, but these lose their validity as soon as the federal government enacts appropriate regulations. In practice, this article gives the federal government a very comprehensive competence, which it has made extensive use of with the enactment of the OR, the labor law and some other laws. There is therefore almost no room for cantonal regulations. Finally, Paragraph 2 of Art. 110 sets limits for the declaration of general applicability of collective bargaining agreements.

Code of Obligations

The basic and most important rules for the conclusion of an employment contract can be found in the Code of Obligations from Article 319. In essence, they regulate a social market economy . In principle, economic freedom applies to the labor market, but at the same time the weaker contractual partner (the employee) is protected from exploitation.

The section is one of the most extensive of the Code of Obligations. It deals with the legal basis of the employment contract , i.e. the relationship between an employer and an employee. First, the individual employment contract - i.e. the employment contract with a single natural person - is dealt with, but there are also sections that restrict the permitted content of collective employment contracts or normal employment contracts . In the case of articles in labor law, a distinction is made in many places as to whether they are mandatory for both sides or only for the employer. It is indicated whether a rule in an employment contract can be deviated from and, if so, to whose advantage. For example, it is permitted to increase the statutory minimum entitlement to vacation in an individual employment contract in favor of the employee, but not to lower it in favor of the employer.

Basically, the employee makes his work available to someone and the employer has to pay wages for it. The wages are charged either as time wages or as piecework wages . In contrast to many other contractual relationships, the employment contract usually expects the employee to do the work personally. The employee is almost always a natural person (different in the case of an order or a work contract ).

Contrary to popular belief, the employment contract is not bound to the written form . Anyone who does work for someone else for which wages would normally be expected, and nothing has been agreed accordingly, is entitled to payment even without an explicit employment contract (Art. 320).

Employee Obligations

With the employment contract, the employee undertakes, in addition to personal work for the employer, to the duty of care in handling the tools and equipment made available to him and to represent the interests of the employer. In particular, he may not accept any further orders from third parties that would be contrary to the interests of the employer. The employee is obliged to maintain secrecy if he becomes aware of any business or manufacturing secrets in his function. This duty of confidentiality does not end with the termination of the employment contract and the employer can also demand that the employee does not compete with him after the employment relationship has ended (so-called non-competition clause). He must inform the employer about his work at all times and must not withhold the products of his work. (Art. 321, 321b, 340 [non-competition clause])

overtime

Overtime work must be compensated either with leisure time to the same extent or with wages. Unless otherwise agreed, the wage for overtime work is at least 25% higher than the agreed wage (Art. 321c).

The employer's authority to issue instructions

The employer may issue instructions to the employee to carry out his work, which must be followed in good faith. However, these must not impair the employee's personal rights in a discriminatory way or in any other way. The boundaries as to what is still permitted and what is discriminatory instruction are fluid, however. (Art. 321d)

Liability of the employee

The employee is liable to the employer for intentional or negligent damage to his property. The degree of due diligence, however, depends on the training of the employee. If he makes an avoidable mistake in a job for which he has received appropriate training and which, to the best of his knowledge, he could have prevented, this is more serious than if, for example, he was commissioned by the employer to do a job that was new or unknown to him was (Art. 321e). He is not liable for accidental damage to tools and equipment.

Obligation to pay wages

With the employment contract, the employer undertakes to pay the wages. If commissions, gratuities or other additional services (such as company success-related shares) are agreed or customary, these must also be paid (Art. 322-322d). Payment usually has to be made at the end of each month (Art. 323).

Default of acceptance by the employer

If the employee cannot start the work for reasons for which the employer is responsible, for example if the necessary work equipment is not available or the employer cannot provide work due to the order situation, the wage is still due. The employee cannot be obliged to rework. In such a case, the employee can (and in some cases must) accept and carry out work other than the normal work. In principle, however, the rule also applies that an employee does not have to carry out an alternative job if this results in serious disadvantages. If the employee normally does piecework wages, he can also be temporarily assigned work for time wages. The wage is then based on the average piecework wage of the employee or on the collective or normal employment contract (Art. 326).

Absence of the employee

If the employee cannot start work because he has fallen ill, is performing a public office or has to fulfill legal obligations (such as military or community service), the employer is obliged to continue paying wages for a certain period. The same applies to maternity leave . The income compensation scheme or similar insurance can cover part of the salary (Art. 324a-324b).

Provision of work material and tools

Unless otherwise agreed, the employer is responsible for the provision of tools and work material. If the employee brings his own tools, the employer must compensate him for them, unless an exception has been agreed (Art. 327). The employer must also pay for damage to or maintenance of tools, provided the employee is not responsible for the damage. Work-related expenses of the employee, such as travel expenses or meals when employed outside of the normal place of work, must also be reimbursed by the employer. The compensation can be a lump sum (Art. 327a). If the employee uses his own vehicle for work, the employer must pay appropriate compensation (Art 327b).

Fridays and vacations

The employee is entitled to at least one day off per week . This should normally be Sunday . The employee is entitled to at least four weeks of vacation per year (five if he is younger than 20 years), of which at least two weeks must be consecutive (Art 329a and 329c). In principle, the employer has the right to set the time of the vacation, but he must take the employee's wishes into account as far as this is operationally possible. Wages are owed during the vacation (paid vacation). However, the vacation may not be paid out. Conversely, the employee may not work for a third party during his vacation, provided that this would affect the employer's interests (Art. 329d).

care

Articles 331 to 331c regulate employee benefits , including insurance contributions and contributions to unemployment funds , pension funds and similar pension institutions, to which employees and employers make proportional contributions.

Inventions of the employee

Articles 332 and 332a contain the usual rules - unless otherwise agreed - with regard to the worker's use of products worthy of copyright protection during work. In general, these belong to the employer, provided that they are created in a way that corresponds to the work. Random inventions, on the other hand, belong to the employee.

Termination of employment

When it comes to employment, a distinction is made as to whether it is a fixed-term or open-ended employment relationship. The fixed-term employment relationship ends without notice at the end of the period entered or upon the death of the employee. If the employment relationship has been concluded for a period of more than 10 years, both the employee and the employer are entitled to a 6-month notice period. If the employment relationship is tacitly continued, it is considered an open-ended employment relationship.

There are notice periods for permanent employment. This amounts to 1 week during the probationary period (maximum 3 months) (can be shortened by collective employment contract), then one month in the first year, 2 months in the second to ninth year of service, then 3 months. The deadlines apply equally to both parties.

Neither side may abusively terminate an employment relationship. This includes, for example, dismissal because the employee has joined a trade union, is doing military service or has another political opinion that has no influence on the employment relationship. It is also prohibited the termination of the so-called wrong time , about Throughout the workers or military service is ill (Art. 334-336d, 338). In order to terminate the contract without notice, there must be substantial reasons that permanently disrupt the relationship of trust between the contracting parties and make it unreasonable to continue the employment relationship (Art. 337). If the termination without notice is unjustified, compensation is due.

As an interesting variant, there is also the so-called change termination, in which the employee is offered a new employment contract in connection with an ordinary termination, which is usually worse than the previous employment contract.

A mass layoff is a termination of a larger number of employees in a company within 30 days, for which the reason for termination does not lie in the person of the terminated employee.

The apprenticeship contract

The apprenticeship contract is a special form of employment contract. It is an agreement between the apprentice and the master teacher, according to which the former wants and is allowed to learn a certain profession professionally with his master . It must be drawn up in writing. The apprentice undertakes to do his or her job to the best of his ability. If he is not yet of legal age , he must be supported by his legal representatives (usually the parents) who co-sign the contract. The teacher undertakes to train his apprentice to the best of his knowledge and belief. He must not refuse him to attend vocational schools and similar institutions and also not abuse the apprentice as cheap labor. (Art. 344-346a)

The commercial traveler contract

The commercial traveler contract is an employment contract for an employee who primarily or exclusively conducts business as a representative for an employer outside his business premises. The contract must be drawn up in writing and include the duration of the employment relationship, the power of attorney for the commercial traveler, remuneration and reimbursement of expenses as well as the place of jurisdiction for the foreign employer (Art. 347-347a). The following articles regulate some special obligations of the contracting parties in this special employment relationship, including details on the authorization of the commercial traveler.

The homework contract

The home employment contract is another special form of employment contract. It is concluded if the employee is supposed to work from home . What is special here is, for example, that the employee is liable for the punctuality of the delivery and for the quality of his work. He must therefore repair defects in the delivered item himself (Art. 350ff).

Collective employment contract

The collective employment contract (GAV) regulates extended agreements between employees and employers as a basis for individual employment contracts . Collective employment agreements are usually concluded between employer organizations and employee organizations (e.g. trade unions ) and define the framework conditions for employment relationships in a specific industry. Employees who work in an industry regulated by a collective labor agreement or in a company subject to such a contract may not be forced to join the union. Conversely, agreements according to which non-members or otherwise designated employees are excluded from an occupation are also void (unless this is necessary for safety reasons or the like). (Art. 356 + 356a) Article 356a ("Freedom of organization and professional practice") is diametrically opposed to the guild regulations that were widespread in Switzerland up to the end of the 18th century . The guilds of the Middle Ages, where compulsory guilds were the rule, had lost their importance in the cantons since the Helvetic Republic of 1798 and the subsequent liberal revolutions, and their laws had been replaced by much more liberal ones. However, these did not protect workers well in the phase of industrialization, they fell into widespread poverty and the defenselessness of the market. It was not until the establishment of trade unions and later the recognition of the GAV as a source of law in 1911 that improvements began. This GAV recognition was the first ever in Europe.

Normal employment contracts

Standard employment contracts are provisions made by the legislature (federal government, cantons, municipalities) for certain occupational categories or professions. The legislature can, for example, set minimum wages for individual occupations (Art 359, 359a, 360;).

Osh

In addition to the provisions of the Code of Obligations, there are further regulations in the Labor Act (ArG) and the associated ordinances (Ordinances on the Labor Act 1 - 5, ArGV 1 - 5). These decrees mainly contain detailed provisions on occupational health and safety , which are part of mandatory law. In particular, there are regulations on maximum working and rest time , shift work and the protection of special groups such as young people and pregnant women. It also contains provisions on health protection, the monitoring of employees and shop opening times (unless regulated by the cantons and municipalities). These mandatory minimum provisions are checked by the cantonal labor inspectorates . This represents the difference to the mandatory norms of the Code of Obligations, which can only be enforced in court by the employee. Further rules for the protection of employees can finally be found in the accident insurance law. Many of the mandatory norms, v. a. in the area of working time, are undercut today by private law agreements such as GAV.

Public employment relationships

General

In the case of employment under public law, special provisions are necessary, on the one hand, to limit the risk of an overpowering policy towards employees and, on the other hand, to take account of the special responsibility that arises from the overriding position towards private individuals. The provisions of private law, in particular of the OR, can consequently not apply. At the federal level, the Federal Personnel Act (BPG) and, for questions of liability, the Liability Act (VG) are particularly relevant. In public employment law, however, there are a large number of references and analogies to private employment law. Furthermore, gaps in public labor law are often closed by the case law by analogous application of private law.

In public employment law, the cantons are not bound by the distribution of competences stipulated in Art. 110 Para. 1 BV. Rather, public labor law is a part of administrative law that the cantons are allowed to shape themselves within the scope of their competence. This can be derived in particular from the “sovereignty” of the cantons (Art. 3 BV). That is why all cantons have enacted their own personnel law. In some cases, however, reference is made to federal or public law rules.

In general, it can be said that public labor law has increasingly adapted to private law in recent decades. Specifically, the civil servant status in the true sense was abolished. The election of civil servants for the term of office has also been largely abolished. This is customary only for commissions with their own decision-making authority, such as the Federal Appraisal Commissions, which determine the value to be paid in the event of expropriations . Finally, the increasingly applied approaches of New Public Management also call for a turn to private law.

employment

According to the dualistic system, an employer under public law can only establish an employment relationship in two steps. First, the employer must internally make a decision to hire a specific person. This ruling can be contested through legal action. However, federal law only grants an unsuccessful applicant legal recourse if discrimination (e.g. violation of the Equal Opportunities Act) is asserted, but not because of the applicant's qualifications. However, individual cantons have also approved complaints about the qualifications of the applicants.

The second step towards employment consists in the classic administrative law in a second order, which establishes the employment relationship. This decree requires cooperation, so it cannot be issued against the will of the employee. In the recent past, however, many cantons have abandoned this system and have switched to a system with administrative employment contracts for reasons of flexibility within the framework of New Public Management. Legal protection is restricted because contracts are more difficult to challenge and easier to dissolve. However, case law has made it clear that, even in the case of administrative contracts, the public-law employer takes the form of a decision that can at least be challenged on the basis of discrimination. The protection against dismissal is higher for employment contracts under administrative law than under private law. In contrast to private law, every termination must be justified and every termination can be contested through legal action.

liability

Most of the cantons and the federal government are now familiar with the system of exclusive state liability . As a result, any harmed third party can always attack the state directly and does not have to take action against its employees. Which rules are to be applied, however, depends on the contractual relationship. If the state provides commercial services in competition with private companies, the state is liable according to the rules of civil law (in particular Art. 41ff. OR). For example, the case law has qualified the treatment at the Zurich Animal Hospital as commercial, since only the training of veterinarians carried out at this institute is a public task, but not the treatment. When providing state services, on the other hand, the state is liable under the current liability law, which is only regulated by the federal government for its employees, while the cantons have passed their own laws. According to case law, treatment in state hospitals, for example, always counts under state liability under administrative law, regardless of whether the patient is legally or privately insured. In practice, the relevance of the distinction between state liability under private law and administrative law primarily lies in the sometimes very different limitation periods .

In turn, the state can, in the event of liability, fall back on the employee who is guilty of misconduct. This is also determined for employees of the Confederation or the cantons according to the respective liability laws.

Remarks

↑ It is not fundamentally forbidden that the employee takes on additional work (additional income) from another employer. However, he may not compete with his first employee (work on his own account) or otherwise jeopardize his work performance - the acceptance of additional night work with a third party can therefore be considered a breach of contract if he shows up to work overnight.
↑ In most employment contracts there are explicit clauses that transfer all rights, in particular rights of exploitation from copyrighted products of the employee to the employer, in exchange for the wages.
↑ A typical example is a dress instruction in the hospitality industry: Whether the instruction that serving staff must always wear very short mini-skirts is discriminatory depends very much on the circumstances.
↑ It would be unreasonable, for example, to send a violinist to the building, as the heavy manual work could influence his instinct for what he has learned and it would be difficult to return to the concert violin.
↑ This is to guarantee, on the one hand, that the employee can really relax while on vacation and, on the other hand, it is to be prevented that the employer always gives the employee daily and short-term vacation when he is unable to provide work.
↑ An engineer is generally expected to develop new products and concepts on behalf of the employer, so in this case the limit for an invention that belongs to him is very high. It is the other way around for an employee on a production line. To a certain extent, this is offset by the engineer's usually higher basic wage.
↑ Articles in collective labor agreements, according to which no former butchers are employed in a commercial establishment, are therefore void. Agreements that only trained staff should be employed in a large butcher's shop, however, should be valid.

literature

Thomas Geiser and Roland Müller: Employment Law in Switzerland . Stämpfli, 2009, ISBN 978-3-7272-8650-6 .
Louis Carlen: On the history of labor law in Switzerland. From the Middle Ages to the 19th Century , in Zeitschrift für Schweizerisches Recht, Volume 91, 1972

Web links

Wiktionary: Labor law - explanations of meanings, word origins, synonyms, translations

Individual evidence

^ J. Brühwiler: Labor law in Switzerland
↑ Wolfgang Seger: Rights and duties of employees . November 13, 2009. Retrieved October 23, 2010.
↑ See Art. 16 of the Unemployment Insurance Act and Art. 328 OR
^ David Schneeberger; Termination in labor law . Retrieved November 16, 2015.
↑ Pascale Hofmeier: Frustration in teaching - what to do? . Observer. Edition 16/2010. Retrieved November 1, 2011.
↑ K. Humbel: The Peace Agreement in the Swiss Machine and Metal Industry , 1987
↑ cf. SR 221.215.32

[2] It is not fundamentally forbidden that the employee takes on additional work (additional income) from another employer. However, he may not compete with his first employee (work on his own account) or otherwise jeopardize his work performance - the acceptance of additional night work with a third party can therefore be considered a breach of contract if he shows up to work overnight.

[3] In most employment contracts there are explicit clauses that transfer all rights, in particular rights of exploitation from copyrighted products of the employee to the employer, in exchange for the wages.

[4] A typical example is a dress instruction in the hospitality industry: Whether the instruction that serving staff must always wear very short mini-skirts is discriminatory depends very much on the circumstances.

[7] It would be unreasonable, for example, to send a violinist to the building, as the heavy manual work could influence his instinct for what he has learned and it would be difficult to return to the concert violin.

[8] This is to guarantee, on the one hand, that the employee can really relax while on vacation and, on the other hand, it is to be prevented that the employer always gives the employee daily and short-term vacation when he is unable to provide work.

[9] An engineer is generally expected to develop new products and concepts on behalf of the employer, so in this case the limit for an invention that belongs to him is very high. It is the other way around for an employee on a production line. To a certain extent, this is offset by the engineer's usually higher basic wage.

[12] Articles in collective labor agreements, according to which no former butchers are employed in a commercial establishment, are therefore void. Agreements that only trained staff should be employed in a large butcher's shop, however, should be valid.

[1] J. Brühwiler: Labor law in Switzerland

[5] Wolfgang Seger: Rights and duties of employees . November 13, 2009. Retrieved October 23, 2010.

[6] See Art. 16 of the Unemployment Insurance Act and Art. 328 OR

[10] David Schneeberger; Termination in labor law . Retrieved November 16, 2015.

[11] Pascale Hofmeier: Frustration in teaching - what to do? . Observer. Edition 16/2010. Retrieved November 1, 2011.

[13] K. Humbel: The Peace Agreement in the Swiss Machine and Metal Industry , 1987

[14] . SR 221.215.32