The lending of Employees is subject to the granting of a permit from the competent authorities. Also the lending of employees from abroad is forbidden. So far, according to the guidelines of the State Secretariat for Economic Affairs there was a broad exception if the lending concerned employees within a group of companies (see the State Secretariat of Economic Affairs’ Guidelines, published in 2003, page 147):
“The lending of employees within a group of companies, i.e. between the parent entity and a subsidiary or between two subsidiaries or branches does not request any permit, even in cases where the employees are lended from one independent legal entity to another. The reason for this is that the lending of employees within a group of companies does not trigger the typical dangers that are inherent with the lending of employees. These employees are generally not seen as “external” employees and it is therefore excluded that they are treated worse than the regular employees. Also, the lending of employees within a group of companies often serves to collect experiences abroad which also excludes the dangers of a typical lending business.”
On June 20, 2017 the State Secretariat of Economic Affairs has issued a new guideline in which the above mentioned very broad exception from the necessity to obtain a permit for the lending of employees is now significantly narrowed as follows:
- Basically the general rules apply to the lending of employees
- Within a group of companies, no permit for the lending of employees is needed if such lending is only carried out in particular cases, on an occasional basis and in case there is a know-how transfer within the group or if the lending serves the collection of professional, language or other experience.
Under these conditions, the State Secretariat for Economic Affairs also grants an exception from the general prohibition to lend employees from abroad.
There are many groups of companies who lend employees within their group without being in possession of a permit based on the so far very broad guidelines of the State Secretariat for Economic Affairs. These Companies now have to immediately adapt their practice, i.e. they have to apply for a permit or limit the lending of employees to the few exceptions described above. Subject to these few exceptions, they have to stop lending employees from abroad. Otherwise, these companies face a fine of up to CHF 100’000 (Art. 39 AVG).
You find the Wording of the new Guideline (in German) here: New guideline concerning the lending of employees