Main aspects of posting employees to Switzerland

Posting of employees

Posting refers to an employer based abroad sending an employee to Switzerland for a limited period of time to perform work under an agreement concluded between the employer and the service recipient (e.g. a client) or to work for an affiliate or another company based in Switzerland.

Posted employees subject to the employment contract and social insurance regime of the county of origin

Posted employees remain subject to both the contract with their employer and the social insurance regime of their country of origin.

Mandatory legal provisions of Swiss labour law

The provisions of the Swiss Federal Posted Workers Act (PWA) and the associated Ordinance (Posted Workers Ordinance, PWO) aim to protect posted employees as well as employees who are already on the Swiss labour market. The two decrees both refer to the Swiss Code of Obligations and collective employment contracts. The list of sectors concerned and of mandatory provisions corresponds to that of Directive 96/71/EC of the European Parliament and of the Council of the European Union of 16 December 1996 concerning the posting of employees with regard to the provision of services. The provisions concern particularly the following aspects:

• minimum wages (including supplements for holidays, public holidays, etc.);
• working hours and rest periods;
• minimum duration of holidays;
• occupational safety and health;
• equal treatment for men and women and
• accommodation that meets the usual standard in terms of hygiene and comfort.

It is commonly known that minimum wages in Switzerland (respectively the employee's wage before deduction of his part of the social security contributions) are often higher than abroad. However, it is important to note that for the same gross wage, the net wage received by the employee in Switzerland is often higher than that of the employee abroad.

Compliance with these regulations is regularly monitored by the Swiss cantons. In the event of a violation, sanctions are provided for, ranging from a warning to a fine to a ban on the provision of services for a period of one to five years.

Access to the Swiss labour market

Switzerland gives priority to employees from EU/EFTA countries on the basis of the Agreement on the Free Movement of Persons. Employees from other countries are admitted if they are "qualified", as defined in the Swiss Federal Act on Foreign Nationals and Integration (FNIA).

When is a work permit required for a posting to Switzerland?

Depending on the duration of the posting in Switzerland, a notification must be made or a work permit must be applied for. Below we provide an overview of the most important requirements:

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‍Posting of employees from an EU/EFTA country for up to 90 working days per calendar year

‍Notification

The employer can post an unlimited number of employees for a maximum of 90 days per calendar year by reporting them to the Swiss authorities online.

The notification must be made at least 8 days before the start of work. Only in emergencies such as repairs, accidents, natural disasters or other unforeseeable events can work begin on the day of notification.

The notification must contain the information provided for in Art. 6 para. 4 PWO.

In the following sectors, an employee who is posted to Switzerland for even a single day must be notified to the Swiss authorities:

• construction and business ancillary to construction;
• hospitality;
• cleaning services in commercial and domestic establishments and
• surveillance and security services.

For other sectors, notification is only required if the duration of the posting exceeds 8 days per calendar year, either continuously or spread over several periods.

‍Work permit requirement

It is important to remember that the "credit" of 90 days per year for online reporting does not refer to the individual employee, but to the employer. Thus, if the employer sends not just one but several employees to Switzerland for a total period of more than 90 days per year, he must apply for a work permit for the excess days for each individual employee.

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Posting of employees from an EU/EFTA country for more than 90 working days per calendar year

‍Work permit requirement

Employees from an EU/EFTA country who are posted for more than 90 days in a calendar year require a work permit as provided for in the FNIA, the Ordinance on Admission, Residence and Gainful Employment (VZAE) and the corresponding directives of the Swiss federal authorities.

The following types of work permits are distinguished:

• permit for 90 or 120 days ad personam;
• short-term residents permit (Permit L) up to 1 year;
• residence permit (Permit B) up to 5 years;
• settlement permit (C permit) issued after 5 years of residence and domicile in Switzerland, therefore it is not usual for a posted employees;
• cross-border commuter permit (permit G), a permit for so-called cross-border commuters, which is now also available to persons who do not live near the Swiss border and do not work in a Swiss canton near the border. The most important requirement for obtaining this permit is that the posted employee works in Switzerland but returns abroad at least once a week (usually on weekends).

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Posting of employees from other countries

‍Notification

The online reporting procedure is not available for posted employees from non-EU/EFTA countries.‍

‍Work permit requirement

In the above-mentioned sectors, a posted employee from a non-EU/EFTA country requires a work permit, even if only working in Switzerland for one day.

For the other sectors, a work permit is only required if the duration of the posting exceeds 8 days per calendar year, either continuously or spread over several periods.

Social Security

An employer who wishes to post an employee must submit an application to the social insurance institution of the country to which he/she is normally subject.

For employees from an EU/EFTA country, if the conditions for posting are met, the competent authority of the country of origin issues the certificate of posting (certificate A1) confirming that the posted employee remains subject to the social insurance system of the country of origin and that the relevant legislation of the country in which he/she is temporarily working does not apply for the entire duration of the posting. For employees from another country that has concluded a social insurance agreement with Switzerland, the procedure and the certificates issued are similar.

The posting is subject to the following requirements:

• Temporary duration of the posting: the posting is granted for a limited period of time, usually for a maximum of 24 months. If 24 months are not sufficient, the employer may apply for an extension, on the basis of Article 16 of Regulation (EC) No. 883/2004 or, if the employee comes from a non-EU/EFTA country, on the basis of a social insurance agreement with Switzerland, with the competent authority. In special cases, the latter will try to conclude an exemption agreement with the Swiss Federal Social Insurance Office. According to Swiss practice, posting may not last longer than 5 years in total.
• Substantial business activity in the country of origin: the employer wishing to post an employee must have been engaged in substantial economic activity in the country from which the posting is made for a certain period of time.
• Social insurance in the country of origin: the posted employee must be subject to the social insurance regime of the country from which the posting is made.
• Ban on replacing a posted employee: it is unlawful to replace a posted employee whose posting period has expired with another posted employee.
• Subordination of the employee: the posted employee must remain subordinate to his foreign employer for the entire duration of the posting and carry out the work in the employer's interest and on the employer's behalf. This requirement is essential since staff secondment from abroad to Switzerland is normally prohibited, except in certain cases provided for in the Swiss Federal Act on the Placement and Hiring of Workers (AVG), which regulates the private employment and secondment of staff.

Conclusions

As described above, the Swiss legal framework with regard to posting employees from abroad to Switzerland is quite complex. In addition to the regulations regarding labour law, work permits and social security, the tax aspects must also be taken into account.

Would you like to dispatch employees from abroad to Switzerland? Our experts will be glad to assist you.

Please contact one of the authors or your usual contact at Altenburger Ltd legal + tax.