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krfacts April Edition 2024 Questions and answers on the topic of "Staff leasing"

Employers often mistakenly think only of their "own" recruitment agency, when in fact they themselves are recruiters. In the case of staff leasing what needs to be considered?

What is staff leasing?

In the case of staff leasing, the employer (lender) commercially hires out one or more employees to a third party (company of assignment).

This constellation is - as is easy to recognize - probably present in almost all contracts with a work service. For example, a plumber replaces a washbasin for a homeowner. In addition to these situations, staff leasing is characterized by the fact that the hirer also assigns the essential powers of instruction from the employment contract to the company providing the service. This makes it possible to speak figuratively of a triangular relationship. The triangular relationship arises as follows: The temporary employment agency and the company of assignment have concluded a temporary employment contract in accordance with Art. 22 AVG, the temporary employment agency and the employee have concluded an employment contract in accordance with Art. 319 et seq. CO and although there is no actual contractual relationship between the company and the employee, the company exercises the authority to issue instructions under the employment contract by virtue of the agency agreement and the company has certain duties of care and supervision towards the employee in the course of performing the work. This (quasi-contractual) legal relationship does not exist in the above-mentioned example of the plumber. The building owner has no authority to issue instructions to the plumber and is also not responsible for ensuring that, for example, health and safety regulations are complied with.

The staff leasing must also be carried out on a commercial basis. According to the ordinance (Art. 29 AVV), this requirement is met relatively quickly. An annual turnover of CHF 100,000.00 from the hiring activity or if more than ten hiring contracts are concluded each year is deemed to be a commercial activity. If, for example, a specialist is loaned out for a longer period of time within a group, the limit in terms of amount is reached relatively quickly.

Question: What needs to be considered when hiring out staff within the Group?

Answer: The issue of staff leasing within the Group is often overlooked. As soon as the employees work for other group companies, it must be checked whether there is a personnel leasing and, if so, whether an authorization requirement does not apply due to the exceptions. Occasional hiring out (defined within narrow limits), temporary assignments, the gaining of professional experience or the transfer of know-how may be exempt from the licensing requirement. However, it should be emphasized that these exceptions are not the rule and a review often leads to the conclusion that there is an intra-group staff leasing requiring a permit. In such a case, it is advisable to accept the initial expense of obtaining a permit. The effort required after a license has been granted is minimal and is usually covered by the annual report on the hours worked and the number of employees hired out.

With simple organizational adjustments, this information can be processed annually as part of the time recording without great effort. If the review as to whether a licensing requirement exists produces an unclear result and the aim is to obtain certainty about a possible licensing requirement, the option of a so-called negative declaratory ruling is available for the specific case. In this case, the authorities must state whether or not they believe a license is required. Lending from abroad to Switzerland is also explicitly prohibited (Art. 12 para. 2 AVG), but is permitted if it serves to gain professional or foreign experience or to transfer know-how.

Question: What are the consequences if the corresponding permit is not obtained despite the fact that staff are hired out within the group of companies requiring a permit?

Answer: The penal provisions (Art. 39 AVG) stipulate that in the case of negligent violations, penalties may be waived in minor cases. In cases that are not minor, the fines range up to CHF 20,000.00 in the case of negligence and up to CHF 100,000.00 in the case of intent. If the perpetrator cannot be precisely identified within the company, the guilty bodies, board members, managing partners, actual managers or liquidators must answer for this. It is worth mentioning that not only the hiring company, but also the employing company (fines of up to CHF 40,000.00) can be fined.

If the CBA Staff Leasing is applicable (Art. 1 et seq. CBA Staff Leasing), it is conceivable that a company audit will subsequently be commissioned by the joint committee of the CBA Staff Leasing and that further costs and contractual penalties will be incurred (Art. 35 et seq. CBA Staff Leasing).

Question: Is there a collective labor agreement to be observed in the staff leasing sector?

Answer: At the end of 2011, a generally binding collective employment agreement was adopted for the staff leasing sector and came into force on 01.01.2012. Employees with a salary above the maximum insured salary (currently CHF 148,200.00; Art. 22 para. 1 UVV) are excluded from the personal scope of application. Business units whose main activity is not staff leasing are excluded from the operational scope of application. Collective labor agreements that are applicable to the company of assignment must be observed and it must be ensured that the claims of the leased employees meet the minimum requirements of this CEA. In addition, if the CBA for staff leasing applies, it must be clarified whether it is complied with in terms of minimum wage, working hours, vacations, public holiday compensation and other areas (further training and enforcement contribution, occupational benefits, daily sickness benefits).

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