4 November 2020

Tip of the shoe and backpack at the border to Switzerland

International companies that have centralized certain functions at a foreign location often send specialists to their Swiss location to perform certain specific tasks (installations, repairs, etc.). In contrast to Community Law, however, the freedom of services according to the Agreement on the Free Movement of Persons AFMP is not fully granted: Postings of more than 90 days require a permit.

Concept of posting 

A posting to Switzerland occurs when a foreign employer headquartered abroad sends employees to work in Switzerland for a certain period of time. The employees posted to Switzerland perform work in the employer's name and at their expense, or work in a branch or a company that belongs to the corporate group. The employment relationship between the foreign employer and the posted employee remains in force during the period of the posting; the foreign employer retains the authority to issue instructions. Likewise, the posted employee remains covered by the social insurance of his country of origin. In order to confirm this subordination, it is advisable to obtain a so-called A1 certificate from the respective compensation fund in good time before the work commences.
Posting should not be confused with personnel leasing, which – if the employee comes from abroad – is prohibited by Swiss Law. In the case of personnel leasing, the employees are, in contrast to posting, placed at the disposal of an external company, which then also has the authority to issue instructions.

Posted Employees Act

The "Federal Act on Accompanying Measures for Posted Employees and on the Control of Minimum Wages under Standard Employment Contracts" (Posted Employees Act, "EntsG") of 8 October 1999 is intended to prevent the performance of work by companies that post employers to Switzerland from leading to abusive undercutting of wages and working conditions in Switzerland.

Therefore, based on the Posted Employees Act, foreign employers must guarantee the posted employees at least the salary and employment conditions that are prescribed in Switzerland in federal laws, ordinances, generally binding collective employment contracts and standard employment contracts. Concretely, it concerns minimum remuneration; working hours; rest periods; minimum vacation entitlement; work safety and health protection at the workplace; protection of pregnant women, of those who have recently given birth, of children and of young people; as well as gender equality.

The Posted Employees Act regulates both the reporting and the permit procedures.

Further legal bases are essentially the Agreement on the Free Movement of Persons AFMP, the Ordinance on the Posting of Employees "EntsV", the Foreign Nationals and Integration Act "FNIA" as well as the Ordinance on Admission, Residence and Employment "VZAE".

Short-term postings up to 90 days (reporting procedure)

For postings of less than 90 days there is only a notification requirement. Third-country nationals must, however, be permanently admitted to the regular labour market in an EU/EFTA member state before the date of the posting, which is deemed to be for a duration of at least 12 months. Attention: The 90 days mentioned above do not only refer to the posted person, but also to the company posting the employees.

If possible, the reporting procedure should be carried out online and must generally be completed by the foreign employer sending the employees to Switzerland at least eight days before the work commences. A notification only has to be submitted, if the posted employee works in Switzerland for more than eight days per calendar year. In a few industries, the notification requirement applies already from the first day.

Postings over 90 days requiring permission

Long-term postings with a duration of more than 90 days per calendar year require a permit (FNIA). There is a labour market verification (priority for nationals, control of salary and employment conditions etc.) as well as a quota system.

Our immigration team will gladly answer any questions you may have.

Co-Author: Andrea Elvedi

Authors:

Categories: Immigration

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