1. Initial Situation
Pursuant to the Swiss Labour Act (the "ArG") currently in force, as well as Ordinance No. 1 to the Labour Act (the "ArGV 1"), the employer has a duty to ensure that all employees maintain a detailed record of their working time. Only employees in very senior and executive positions, i.e. the few members of the top management, are exempt (they are, in principle, not subject to the ArG).
This legal regulation has for some time been criticized as outdated. Moreover, it does not sufficiently take into account today's working environment where at least with respect to certain functions and positions there is no clear separation between the professional and the private life.
The State Secretariat for Economic Affairs (the "SECO") by a directive of 19 December 2013 has called on the cantonal labour inspectorates to adapt their practice of controlling recording of working time starting from 1 January 2014. The said directive notes, in particular, that simplified time recording may be sufficient for employees of a specific category. Simplified time recording is appropriate for employees, whose work entails a wide scope of decision making, who to a large extent plan their work independently and who schedule their work on their own. This, however, applies only to employees that do not conduct night and Sunday work on a regular basis.
The SECO directive will now be replaced by an amendment to the ArGV 1 which was agreed by the social partners. The exact date on which the amendment is to enter into force is not yet determined. According to a press release of the Federal Department of Economic Affairs, Education and Research dated 22 February 2015, the amendment will, after a brief consultation, enter into force as soon as possible, with the third quarter of 2015 mentioned as a potential time for its entry into force. The Parliament's approval of the new provisions is not required.
2. Content of the New Regulations
- Initial Situation The proposal provides for two new provisions, articles 73a and 73b in the ArGV 1. Whereas article 73a ArGV 1 concerns the waiving of the recording of working time, article 73b ArGV 1 deals with simplified time recording.
- Waiver of Working Time Recording Pursuant to article 73a ArGV 1, the recording of working time can be waived by means of a collective bargaining agreement. However, three cumulative requirements must be met. First, the employee must enjoy a high level of independence and considerable freedom in terms of organizing their working time (para. 1 lit. a). Second, the employee must earn a gross annual salary (i.e. wages on which AHV [Old-age and Survivors' Insurance] contributions are based) of at least CHF 120,000 (para. 1 lit. b). Third, each employee must individually consent in writing (para. 1 lit. c). Complementary information concerning the collective bargaining agreement is included in para 3.
- Simplified Time Recording Pursuant to article 73b ArGV 1, simplified time recording can be agreed on between an industry's social partners or on a corporate level. As with the waiving of working time recording, simplified time recording may not be implemented for all employees but only for those who can, to a considerable extent, determine their own work schedule. In this case, only the total hours worked per day must be recorded (para. 1). With respect to the agreement, para. 2 stipulates that the employee categories qualifying for simplified time recording must be specified. In addition, it must be stated how the provisions on working time and rest periods will be met. A joint commission will ensure that the agreement is observed.
It is worth mentioning, that according to para. 3, employees may request the recording of their working time notwithstanding such agreement, and that the employer must then enable them to do so by providing them with an appropriate device.
At first glance, the possibilities created by the revision of the ArGV 1 (waiver of working time recording and simplified time recording, respectively) appear attractive. Also, the financial threshold (gross annual salary of at least CHF 120,000) in principle makes sense.
This positive picture, however, is considerably put into perspective by the fact that a waiver of working time recording requires the conclusion of a collective bargaining agreement. Thus, the new regulation is of interest mainly to industries and employers that are subject to a collective bargaining agreement already today. To subject oneself to a (comprehensive) collective bargaining agreement solely for the purpose of this new regulation on the recording of working time is unlikely to constitute a genuine alternative for all other employers. For these employers the current (unsatisfactory) situation remains.