Temporary assignment of workers
Workers are temporarily assigned when a company based outside of Switzerland wishes to provide a service on Swiss territory. Here are the details.
What is the temporary assignment of workers?
This refers to the provision of salaried staff by a company havings its domicile or registered office outside of Switzerland so that it can provide a service as part of a contract entered into with the recipient of the service, or for a company located in Switzerland, whether it is a subsidiary or part of the employer’s group. So this can mean a person who:
- habitually works within the territory of a country other than Switzerland
- was hired in a country other than Switzerland
Three examples of temporary assignment:
- A German worker is assigned by a Finnish company for two months to conduct market research in Switzerland.
- An English company assigns one of its directors to its Zurich branch for two years.
- An Austrian worker is hired by a German temp agency. He is appointed to work in Switzerland for 12 months. This entails the indirect hiring of services from overseas to Switzerland. But hiring from overseas to Switzerland is unlawful.
(work.swiss: Unlawful activities undertaken by employment and foreign service hiring agencies, work.swiss: Scenarios for hiring of cross-border services and employment authorized by the LSE)
What procedures should be followed for stays of less than 90 working days?
a) Nationals from the 15 Member States of the EU/EFTA, including Cyprus and Malta
The cross-border provision of services, through temporarily assignment of a worker, of a maximum period of 3 months (90 days) per calendar year is no longer subject to the residence permit system for nationals of the 15 Member States of the EU and EFTA, including Cyprus and Malta. However, a declaration procedure has been introduced.
An employer who temporarily assigns staff is required to declare this to the relevant cantonal authorities for the place of work if the work in Switzerland lasts more than eight days per calendar year. Assigned staff working in the construction, civil engineering and construction finishings, hotel, catering, industrial and domestic cleaning, surveillance and security sectors, as well as traveling sales (with the exception of stall keepers and circus operators) must be declared on the first day of their gainful activity in Switzerland, irrespective of the term of their assignment in Switzerland.
Temporary stays with a view to providing services not covered by a specific agreement between Switzerland and the EU relating to the provision of services, and which exceed 90 working days per calendar year, require a residence permit and are subject to conditions relating to the labor market and to fixed quotas. A residence permit for 120 days (four months) which is not subject to quotas may only be issued under exceptional and justified cases.
Providers of services covered by a specific agreement between Switzerland and the EU relating to the provision of services are required to obtain a permit if they carry out an activity in Switzerland for more than 90 days per calendar year. EU/EFTA short-term residence permits granted for stays of more than three months and less than four months are not subject to quotas. Issuance of an EU/EFTA short-term residence permit for more than four months subject to quotas; however, exhaustion of quotas is not enforceable against the applicant.
It should be noted that these provisions remained applicable after June 1, 2007 (Notification procedure for short-term work in Switzerland).
b) Nationals of the EU10 (with the exception of Malta and Cyprus)
If a company having its domicile or registered office outside of Switzerland wants to temporarily assign a worker to provide services in Switzerland, it may only follow the procedure for declaration if said services:
- are provided for 90 working days at the most per calendar year
- come under what are known as non-specialist sectors
A company working in the sectors below must, however, apply for authorization to assign staff (Art. 10 (2)(a) ALCP, Art. 26 (2) Annex I ALCP, Art. 14 (2) and (27) OLCP):
- construction, building shells, civil engineering and construction finishings
- services related to cultivation and landscape design
- industrial cleaning
- surveillance and security
These staff need a short-term residence permit as from their first day of work. The cantonal authorities hand down a prior decision with respect to the labor market and check that the following conditions are met:
- priority of indigenous workers
- pay and working conditions
- qualification criteria (only qualified workers are admitted; specific grounds also have to justify admission)
For service provision lasting more than 90 working days, whatever the sector of activity in question, these staff need a permit. The regulation is identical to EC 17/EFTA; quotas were planned up to April 30, 2011 (Notification procedure for short-term work in Switzerland, FAQ – Frequently asked questions).
c) Nationals from non-Member States of the EU/EFTA, including Bulgaria and Romania
The partial liberalization of services provided for in the bilateral agreement between Switzerland and the EU/EFTA includes the right of a company to temporarily assign its staff to Switzerland even if these are individuals who are not citizens of the EU/EFTA or of Switzerland.
These staff may only be posted to Switzerland if they have been integrated in the regular labor market of a Member State of the EU/EFTA for at least 12 months. Under Swiss regulations, an entry visa can, however, be imposed on these staff and on family members.
What procedures should be followed for stays of more than 90 working days?
Temporary stays with a view to providing services not covered by a specific agreement and which extend beyond 90 working days per calendar year are not governed by the bilateral agreement on the free movement of people but must satisfy the requirements in force relating to the labor market in Switzerland (Foreign Nationals Act [FNA], the Order on admission, stays and carrying on a gainful activity [OASA] along with the FNA and OASA directives). If these conditions are met, European citizens will be issued an EU/EFTA residence permit for the duration of the service provision.
What are the procedures in terms of employment law?
Companies wishing to temporarily assign workers in Switzerland must prove that they meet the working and salary conditions prevailing in Switzerland. The Federal Law on workers assigned to Switzerland and the Order on workers assigned to Switzerland, in force since June 1, 2004, establish the minimum working and salary conditions which must be guaranteed for assigned workers by declaring that a certain number of standards currently in force in Switzerland are applicable to such workers. In addition to provisions on minimum pay, these companies must also respect the rules relating to worker protection (particularly concerning working hours and breaks, health and safety at work as well as the protection of pregnant women and new mothers). All of these conditions are regularly checked and penalties may be imposed if they are not respected (Entsendung von Arbeitnehmenden in die Schweiz (only in german), National wage calculator of the State Secretariat for Economic Affairs, Allgemeinverbindlicherklärung von Gesamtarbeitsverträgen: Weisungen über Beiträge (only in german), Employee protection).
What are the procedures in terms of social security?
In terms of social security, assignment consists of temporary posting to another State with continuation of the social security scheme of the assigning State. Under Regulation (EEC) No. 1408/71 of June 14, 1971, the affiliation of a worker with the social security regime of the State of origin may be continued for the duration of the assignment to another country for a maximum period of 12 months. To do this, workers must be in possession of a portable document (Form E101 or E102 as applicable) which shall serve as a certificate of assignment and therefore of affiliation with the social security scheme in the State of origin. These forms are available online or from the social security agencies of EU/EFTA countries (Vollzug Sozialversicherungen (only in german), Posted workers (FSIO), EU social security coordination , Practical guide on the applicable legislation in the European Union (EU), the European Economic Area (EEA) and in Switzerland).