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The Swiss company "Wilhelm Tell LLC." restores theater stages and is known for its affinity for art and the quality of its work. For an assignment at the Bernese Museum of Art, it requires specialist staff, which is why it engages the British company "BestArtWorkers Ltd.", which also involves self-employed workers from the UK. These people are long-term subcontractors of the British company and work primarily as art painters or restoration specialists.
The HR manager of the Swiss company therefore registered 3 people for the next assignment in Bern using the online notification procedure. All of them were registered as self-employed service providers on behalf of the British / Swiss company and not as employees of the British "BestArtWorkers Ltd.".
As part of a labor market inspection by the labor market inspectorate, the three service providers were asked to provide certain documents relating to their self-employment. These included the A1 certificate, the project contract with the Swiss customer, customer invoices, VAT statements, etc. The following questions were particularly relevant in the form concerning proof of self-employment:
- Information about their own company - name, registration, homepage
- Number of regular orders for various clients in their own name and on their own account
- Registration in the telephone directory
- Advertising for the self-employed activity or the company
- Availability of own operating/business premises or own vehicle
- Who provides materials, machines and tools for the work assignment
- Existence of bookkeeping
- Scope for decision-making on the assignment
- Organization of accommodation
Art. 1a of the Swiss Posted Workers Act states that foreign service providers who claim to be self-employed must provide evidence of this to the competent supervisory authorities on request. The concept of self-employment is defined in accordance with Swiss law.
The service provider must present the following documents to the inspection authorities during an on-site inspection:
- Copy of the confirmation of registration or copy of the permit issued if the exercise of gainful employment in Switzerland is subject to the registration procedure or the permit procedure under the legislation on foreign nationals;
- Certificate in accordance with Article 19 paragraph 2 of Regulation (EC) No. 987/2009 (Form A1);
- Copy of the contract with the client; if there is no written contract, a written confirmation from the client for the assignment to be carried out in Switzerland; the documents must be submitted in an official language.
The labor market inspectorate has assessed the specific case based on the de facto labor situation in Switzerland. The persons inspected submitted the required documents. In view of the situation and the nature of the project implementation, the authority made its decision based on the following aspects:
- Lack of decision-making scope / work on instructions - the work organization was carried out after consultation with the team.
- The reported persons did not work alone, but in teams on site.
- The material was provided by third parties.
- Accommodation was organized by the client.
In this sense, the reported persons were not qualified as self-employed persons but as dependent employees in a de facto employee situation. The fact that they were registered as self-employed people in their home country played no role at all.
As a result, the workers were incorrectly registered as self-employed service providers (instead of as posted workers), which is why this constituted a breach of the Posted Workers Act. A fine was imposed in accordance with Art. 9 para. 2 lit. a of the Posted Workers Act.
Conclusion:
Persons who work in Switzerland on the instructions of the client and have their accommodation, work performance and work materials paid for and determined by the client are regarded as auxiliary persons or de facto employees, for whom registration as dependent service providers in the online notification procedure is required, even though these people are considered self-employed in their home country. The consequence of this regulation is that the working and salary conditions in accordance with the Posted Workers Act or the corresponding sectoral CBA for the protected professions must be complied with.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.