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Project assignments usually entail several challenges, but when they take place abroad, there are also a number of other challenges and aspects that need to be taken into account.
In practice, we repeatedly see that the work permit regulations in Switzerland are not always entirely clear and raise a number of additional questions.
Practical example:
Senna AG, based in Zurich (Switzerland), would like to implement an international reporting system that has already been installed as a pilot study in the German subsidiary. Martin Fuchs from Senna Deutschland AG in Munich (Germany) is to be seconded to Senna AG in Zurich for the implementation. The project assignment is scheduled to last 8 months.
Mr Fuchs is a married German national who lives with his wife and two children in Munich (Germany). He will remain in Germany as his main place of residence for the project assignment.
Question:
Senna Deutschland AG is unsure whether a work permit is necessary.
This example concerns a "classic" project assignment in which the employee, namely Mr Fuchs, is employed by a non-Swiss company and is to work in Switzerland for a limited period.
A work permit must be obtained in advance for Mr Fuchs. The existing Agreement on the Free Movement of Persons, which allows any EU/EFTA national to move to Switzerland and take up employment, only covers local employment in Switzerland, but not secondment. The permit application must be submitted to the cantonal labour market authority of the Canton of Zurich (Office of Economy and Labour in Zurich).
The following points must be fulfilled to obtain a work permit:
- Fulfilment of the overall economic interest: It must be shown that the deployment of the foreign person is in the interest of the Swiss company and will therefore have a positive impact on the economy.
- The licence holder is a specialist: As a rule, a specialist is a person who has a university degree in the same field in which the activity is carried out and at least 2 to 3 years of professional experience in this field. If the person does not have a university degree in the relevant field, they must have at least 10 years of professional experience in this field.
- Existence of a corresponding quota: There are quotas for service recipients with EU/EFTA citizenship, which are published quarterly in the respective cantons.
Because the assignment will last for 8 months, the legal condition from the Swiss side must be observed that Mr Fuchs must also take up residence in Switzerland.
After the application has been reviewed by the labour market authority and the work permit has been issued, the application will be reviewed by the cantonal migration office, in this specific case the migration office of the Canton of Zurich, which will issue a letter requesting Mr Fuchs to register with the municipality of residence responsible for him. Mr Fuchs may only start working in Switzerland once he has registered with the municipality of residence in Switzerland.
For the project assignment in Switzerland, Mr Fuchs requires a secondment contract that also contains the relevant Swiss legal provisions. In addition to working hours, public holidays, and holidays, this also includes mandatory compliance with Swiss salary regulations. This means that Mr Fuchs must receive a salary that corresponds to the level of a comparable Swiss salary for the duration of his assignment in Switzerland.
The most frequently used tool for this calculation is the official salary calculator (https://entsendung.admin.ch/Lohnrechner/lohnberechnung) of the State Secretariat for Economic Affairs (SECO).
In the event that the basic salary that Mr Fuchs receives from Senna Deutschland AG is the same or higher, no adjustment is necessary. However, if the basic salary is lower than the comparable Swiss salary calculated using the salary calculator, Mr Fuchs must also be paid the difference.
The difference is to be understood as a gross amount so that the corresponding deductions for social security contributions and taxes must still be made.
In addition, based on the Posted Workers Ordinance and the resulting accompanying measures, Mr Fuchs is entitled to reimbursement of the costs of accommodation in Switzerland, travel costs in Switzerland and travel costs at the beginning of the assignment from Germany to Switzerland and back to Germany at the end of the assignment, as well as meal costs in Switzerland. The employer generally has the choice of either paying the actual costs of the individual expenses or reimbursing or paying these as lump sums.
The fact that the employee retains his/her main place of residence in Germany has no effect on the assessment and procedure under work permit law.
From a social security law perspective, Mr Fuchs can remain subject to the German social security system during the project assignment so that he can be exempted from the Swiss social security obligation. Senna AG in Switzerland only requires a copy of the A1 form issued by the German authorities.
As a result of taking up residence in Switzerland, Mr Fuchs is subject to compulsory health insurance in Switzerland. He can also be exempted from this by submitting the A1 form. However, it is important to note that the application for exemption must be submitted within 3 months of taking up residence.
Conclusion:
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.
