Cross-border business trips - what counts as working hours?
Employment / Immigration
With the revision of Ordinance 1 to the Labour Code, the Federal Council has in particular regulated the creditability of working hours during cross-border business trips. Read in this article, what these new rules entail.
With the revision of Ordinance 1 to the Swiss Labour Code (ArGV 1), the Federal Council aims to transfer the practice already applied by the authorities to the Ordinance and to clarify, in particular regarding credit of working hours during cross-border business trips. Read below the essentials of the changes and possible need for action for you or your employer:
The most important change concerns cross-border business trips undertaken by the employee:
The newly introduced para. 3bis of art. 13 ArGV 1 provides that if employees travel abroad in the course of their work, the time spent on the in- and outbound journeys in Switzerland shall, in principle, be regarded as working hours. If these journeys take place wholly or partly at night or on a Sunday, no authority approval for night or Sunday work is required. The new paragraph thus regulates, on the one hand, what time can be credited as working hours and, on the other hand, that no approval is required for night work and work on Sundays in the context of cross-border business trips..
Working hours within the meaning of the Labour Code is the time an employee must be at the employer's disposal. This does not include the time required to travel to the contractually agreed place of work (Art. 13 para. 1 ArGV 1). If the employee has to work at a place other than the contractually agreed place of work, the additional time spent on the way to work constitute working hours (Art. 13 para. 2 ArGV 1).
New art. 13 para. 3bis ArGV 1 states that in the case of cross-border business trips, the time spent in Switzerland are considered as working hours. The means of transport used by the employee are irrelevant. Analogous to art. 13 para. 2 ArGV 1, the time that would be needed for the commute to work is to be deducted from the accrued working hours.
Immediately after returning from the business trip to the employee’s home, the employer must grant the employee the statutory rest period of eleven hours (art. 15a para. 1 ArG and art. 13 para. 3 ArGV 1).
Since Swiss Labour Code can only regulate matters that take place on the territory of Switzerland, workings hours spent on business trips abroad are not subject to these regulations. The employer and the employee must find their own arrangements, provided that no mandatory foreign regulation or collective labour agreement provision precludes such an arrangement. Such individual arrangements can, for example, be issued in the form of directives.
The employer does not have to obtain approval by the authorities for night and Sunday work, even if the cross-border business trip takes place on a Sunday or at night (art. 13 para. 3bis second sentence ArGV 1). However, the fact that no approval is required does not affect the wage or time supplements owed for night and Sunday work (in particular art. 17 and 19 Swiss Labour Code).
Additionally, the following concretizations were newly introduced to ArGV 1:
Art. 16 para. 1 ArGV 1 stipulates that the working week begins on Monday at 0.00 and ends on Sunday at 24.00. This definition is paramount for the determination of the maximum weekly working hours within the meaning of art. 9 Swiss Labour Code.
Temporary Sunday work within the meaning of art. 19 para. 3 ArG is defined as work on a maximum of six Sundays, including public holidays (art. 32a para. 1 ArGV 1). If, in the course of a calendar year, it turns out that the employee has to work more than six Sundays - and thus permanently or regularly performs Sunday work within the meaning of art. 19 para. 4 Swiss Labour Code - the employer must nevertheless pay the wage supplement in the amount of 50% for the first six Sundays.
If you have any questions regarding the changes to ArGV 1, which came into force on November 1, 2020, our experts at MME will be happy to answer them by phone or in person.