Prohibition to Render Services in Switzerland Due to Violation of Swiss Work Time Rules
The Swiss Federal Supreme Court confirmed a prohibition to render services in Switzerland for a one year period. This prohibition was imposed by the cantonal authorities upon a Dutch entity because the Dutch entity's employees worked in Switzerland in violation of the maximum Swiss work time rules. They worked on a Sunday without the required authorization when rendering services in Switzerland and worked longer hours than permitted by Swiss law.
To avoid any social and salary dumping Swiss law requires all employers who second employees to Switzerland to guarantee at least the employment and salary conditions provided for in federal acts, ordinances issued by the Federal Council, the highest federal executive body, collective bargaining agreements which have been declared generally applicable and standard employment contracts and which relate to (i) the minimum salary including surcharges, (ii) work and rest time, (iii) minimum duration of vacations, (iv) health and safety at work, (v) protection of pregnant employees, women in childbed, children and juveniles and (vi) non-discrimination, in particular between women and men.
This means, for example, that during their secondment to Switzerland, employees need to be given at least four weeks of paid vacation per calendar year (or such longer period that a collective bargaining agreement might provide for). The Swiss work time rules which basically apply to all employees with very few exceptions such as the top layer of management or sales persons who spend most of their time visiting customers, basically prohibit work at night and on Sundays. Furthermore, the maximum statutory work time amounts to 45 hours per week for employees in industrial enterprises, office personnel and sales persons in big retail enterprises. The maximum weekly work time for other employees amounts to 50 hours. To a limited extent deviations from these maximum work time rules are possible under certain conditions.
In the specific case which the Swiss Federal Supreme Court had to decide a Dutch entity sent two employees to work on a construction site. They worked during more than 50 hours per week and also on Sunday because the work was necessary to meet the delivery date and the Dutch employer entity did not have the ability to second additional employees to Switzerland. The cantonal authority fined the Dutch employer in an amount of CHF 2,400 and prohibited the provision of any services in Switzerland for a one year term. The Swiss Federal Supreme Court confirmed these sanctions and rejected the Dutch entity's argument that the violation was only of a slight nature and of minor relevance and that, therefore, no prohibition to provide services in Switzerland could be imposed upon the Dutch entity. It also rejected the argument that the violation was less serious than a violation of the rules relating to health and safety at work because a violation of the Swiss work time rules also constituted a criminal offense and also had the ultimate goal of increasing safety at work.
The decision shows how important it is for employers which second their employees to render services in Switzerland to comply with the minimum Swiss salary and employment conditions and how serious the effects of non-compliance can be.