Revision of occupational health and safety law as of July 1, 2023
Since July 1, 2023, more flexible maximum working time regulations have applied to companies in the information and communication technology sector. For service companies in the areas of auditing, fiduciary services and tax consulting, there is the newly created option of agreeing an annual working model with their employees. The adjustments increase the flexibility of work performance and are to be welcomed. Attention must be paid to compliance with the specifically applicable protection regulations.
1. more flexible maximum working hours for ICT companies
In information and communication technology (ICT) companies and for adult employees engaged in project-related or deadline-related ICT activities in them, the period of daytime and evening work, including breaks and overtime work, may be extended to a maximum of 17 hours. Flexibility extends the maximum permissible working time by 3 hours if this is necessary in the context of international cooperation or for urgent, unforeseeable activities(Art. 32b ArGV 2; SR 822.112). The daily rest period must be at least 9 hours (instead of 11 hours) and 11 hours on average over four weeks(Art. 32b para. 2 lit. a ArGV 2). The rest period may be interrupted by working time. Analogous to the regulation for on-call duty, in this case the rest period must be granted to the remaining extent. If a minimum rest period of four consecutive hours cannot be achieved, the daily rest period of 11 hours must be granted following the last work assignment (Art. 32b para. 2 lit. b ArGV 2 in conjunction with Art. 19 para. 3 ArGV 1; SR 822.111). ICT establishments are establishments that offer ICT products or services to third parties, such as the development, adaptation, testing and maintenance of software, the planning and design of computer systems comprising hardware, software and communication technology, and the management and operation of such computer systems or other data processing equipment of a customer on site(Art. 32b ArGV 2).
2. annual working time model for the service industry
Companies that mainly offer services in the areas of auditing, fiduciary services or tax consulting may now employ adult employees in an annual working hours model under certain conditions(Art. 34a para. 1 ArGV 2). The prerequisite is a high degree of autonomy of the employees in determining their working hours. The employees must also be supervisors or technical specialists and have a gross annual income of more than CHF 120,000 (pro rata) or have a degree at bachelor level or at vocational training level 6 (of 8 levels) or an equivalent educational qualification.
Employment in an annual working hours model must be agreed in writing. In particular, the number of hours to be worked per year (i.e. annual hourly target) and the type of compensation for hours worked in excess of this must be specified. The parties may revoke the agreement at any time with three months' notice to the end of a month(Art. 34a para. 2 ArGV 2). In addition, employers must take preventive measures in the area of health protection with the participation of employees or employee representatives(Art. 34a para. 2 ArGV 2) and comply with numerous special regulations relating to work performance(Art. 34a para. 3 ArGV 2):
The maximum weekly working time is 63 hours, and the average weekly working time per year is 45 hours.
The positive annual working time balance (i.e. annual working time worked ./. annual hourly target) may not exceed 170 hours per year. These overtime hours are to be compensated in the following year by time off at a ratio of 1:1 or paid out with a surcharge of 25%.
The daily rest period must be 11 hours on a four-week average, and at least 9 hours per working day. The rest period may be interrupted (analogous to the regulation according to item 1).
Sunday work is permitted on a maximum of 9 Sundays for a maximum of 5 hours without a permit.
The working time must be recorded.
3. outlook
As of September 1, 2023, the revised Data Protection Act (DPA) will come into force. The new DPA fundamentally strengthens the data-specific rights of employees. From the employer's perspective, it is advisable to review internal regulations and processes for compatibility with the DPA. It should also be noted that, according to recent case law, employers can defend themselves against unjustified requests for information in the context of labor law proceedings. Accordingly, in case of doubt, I recommend clarifying in advance whether information actually has to be disclosed to the employee who is willing to file a lawsuit.
If you have any questions regarding labor law issues, please contact Emanuel Tschannen.