9 March 2021

Border to Switzerland, men with backpack

If a foreign employer (natural or legal person domiciled or resident in an EU/EFTA country) posts workers to Switzerland for a temporary assignment of less than 90 days (e.g. as part of a project), this does not require a permit. However, the foreign employer must notify the authorities of such an assignment in accordance with Article 6 of the Posted Workers Act (PWA). The purpose of the notification is that the responsible authorities can then monitor compliance with minimum pay and working conditions. Without such notification, they would have no knowledge of the activities of foreign employees in Switzerland. 

Notification obligation under the Posted Workers Act 

In certain industries, the obligation to notify a work assignment of less than 90 days arises from the first day of the planned assignment, e.g. in the hotel and restaurant industries or in the construction industry, according to Art. 6 para. 2 of the Posted Workers Ordinance (PWO). In the "other industries", the obligation to notify only applies if a work assignment of more than eight days is planned. The 90-day period is calculated on the basis of effective working days, irrespective of whether the work is performed continuously or intermittently. The 90-day period applies to a calendar year and the posting employer for each posted employee. Thus, there is a "quota" of 90 days per calendar year. An example: If an employer posts three employees to Switzerland for five days on October 20, 2021, five of the 90 days (for the calendar year) have been "used" by the posting employer and the posted employees, not 15 (!). It should also be noted that if an employer from one of the "other industries" has already posted an employee to Switzerland for an assignment of eight days, the notification obligation applies to further postings in the corresponding calendar year.  

The notification must be submitted eight days before the start of the assignment, i.e. the assignment may not be started until eight days after the notification. In emergencies (e.g. natural disasters or accidents), the assignment may start on the day of notification (at the earliest). Any such emergency must be declared and justified to the competent cantonal authority. The notification can be submitted by filling out an online form (notification procedure - notification (admin.ch)) and is – when made this way – free of charge. The information to be provided includes the identity of the posted employee, salary, place of work, start date and expected duration. The notification must be made separately for each posted employee. 

The posting employer is responsible for the (timely) completion of the notification. He also has to bear the consequences of a failure to notify or late notification. It is possible that the competent authorities will carry out inspections at the workplace. In such cases, it makes sense to have the confirmation of notification and the employment contract close at hand. Administrative fines of up to CHF 5,000 may be imposed on the employers who do not comply with the requirements. To assess the amount of such a fine, the State Secretariat for Economic Affairs (SECO) has published a non-binding recommendation to the sanctioning authorities (SECO Recommendation 2017, currently not available in English). Failure to pay the administrative fine may result in a business suspension, i.e. the company being prohibited from providing services in Switzerland for a period of one to five years. If this suspension is disregarded, criminal consequences (fine of up to CHF 40,000) may be imposed. 

Excursus: CLA deposit obligation

In addition to the obligation to notify, it must be taken into account that certain collective labor agreements (CLA) provide for a deposit obligation. The deposit usually serves to cover claims arising from the CLA (e.g. to cover claims arising from the violation of its provisions). The deposit requirement also applies to employers who post employees to Switzerland and are covered by the relevant CLA (Art. 2 para. 2ter Posted Workers Act). 

The Central Deposit Administration Office Switzerland (ZKVS) is responsible for the processing of deposits. It informs the employers concerned individually about the obligation to pay a deposit and provides them with a leaflet with details on how it is to be paid. The deposit must be paid in cash (by bank order) or by means of an irrevocable bank guarantee from a FINMA-approved bank or insurance company prior to the start of work. The amount of the deposit is determined by the applicable CLA and may be calculated on the basis of the total order value. 

The posting employer is responsible for the payment of the deposit. If the deposit is not paid or payment is late, a penalty will be imposed under the CLA and this constitutes a violation of the Posted Workers Act, which in turn will be punished by a fine or, if necessary, a business suspension. Payment of the contractual penalty or fine does not release the employee from the obligation to pay the deposit. 

If you have any questions or require further information, please do not hesitate to contact the VISCHER Immigration Team.
 

Categories: Immigration

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