In a company or group of companies, you are often confronted with the need to fill positions at short notice or in the medium to long term. This may be necessary due to a short-term staff shortage or absence, and therefore an employee needs to be replaced, or the company is not satisfied with the performance of a management employee and would like to take the opportunity to deploy an employee from the parent company or another subsidiary.
Many companies also offer their employees the opportunity to spend time abroad in another affiliated company as part of a career development programme. Such an assignment abroad usually lasts between 1 to 3 years.
In principle, the assignment of an employee to another company is nothing more than the borrowing of a human resource. If this involves "unrelated" companies, it is referred to as staff leasing. In this context, the Swiss State Secretariat for Labour (SECO) also issued a directive in June 2017 on the intra-group deployment of employees, which is regarded as staff leasing within a group.
According to this directive, not all postings within a group constitute staff leasing that requires authorisation. The directive clearly outlines the situations in which intra-group transfers are not subject to a staff leasing authorisation requirement, i.e. a Swiss company does not need to obtain a staff leasing authorisation to post an employee to a related company abroad.
According to the SECO directive, the following criteria must be met to avoid having to obtain a staff leasing licence:
- The employee is mainly employed to perform work in one of the group companies. The hiring out of personnel to another group company is not intended and only occurs in individual cases.
- Staff leasing is not part of the main purpose of the lending company.
- Staff leasing is limited in time.
- Staff leasing is only occasional (Art. 27 para. 4 AVV)
- For example, the employer would like to bridge a slump in orders and the deployment company would like to cover a short-term need for additional personnel within the group.
- The focus is on gaining experience and / or acquiring / passing on specific knowledge and expertise.
- The employee has the opportunity to spend time abroad or gain work experience in another group unit.
- Expertise is transferred within the group, for example by implementing new software throughout the group or training an employee on a new machine.
The following example is intended to help answer the question of whether a personnel leasing licence is required for intra-group transfers.
Example:
The Neptunia AG Group operates globally and has branches and subsidiaries in 40 different countries. The group employs a total of 2,000 people worldwide.
The group has grown very quickly in the past and recognises the need to make better use of the exchange of knowledge and experience within the group in the future. On average, the parent company, Neptunia AG in Zurich, sends between 10 to 15 people per year for a wide variety of purposes.
The following assignments were made by the Swiss parent company in 2023:
- Peter Schwan: His secondment is for 4 years to support the development of the Japanese company and will take on the role of Managing Director for this period.
- Nadja Karanova: Her secondment is for 2 years to replace the HR Director in Germany at short notice. The current post holder has gone on maternity leave for 2 years and will be replaced by Ms Karanova for this period.
- Sibylle Meister / Lina Pandarian / Paul Forbes: Their secondments are each for 1 year for the implementation of new software and staff training. Within the 12 months, they will carry out the installation and training of 10 locations. This means that they change locations after approx. 6 weeks.
- Fabienne Schuster: Her secondment to the USA is for 2 years and is part of the Career Development Programme
- Ryan Ganter: His secondment is for 12 months to assist at the production facility in Sweden on a short-term basis. The Swedish company has received a large order and does not have the necessary capacity.
- Tobias Petrovic: His secondment to Portugal was planned for 6 months. The finance manager there has resigned. A suitable candidate has been found, but he will not be able to take up the position for another 6 months. Mr Petrovic was appointed to bridge this period.
If we were to make an assessment based on these applications, we would come to the following conclusion:
The total of 8 postings can be regarded as occasional intra-group transfers. In addition, a corresponding exception can be made for each individual assignment, which would mean that no personnel leasing licence is required.
However, it is important to look at the bigger picture. Based on the postings in question, it can be concluded that these assignments are not primarily undertaken for the Swiss company to make a profit, but rather for the most part for the purpose of knowledge transfer and to support the foreign companies.
If this conclusion is reached, then this leads to the assessment that Neptunia AG does not require a staff leasing licence.
To obtain legal certainty, a negative certificate can be obtained from SECO, in which SECO assesses the cases based on the specified factors and, if necessary, confirms that there is no need to apply for a personnel leasing licence.
Conclusion
It depends on the overall assessment of the circumstances and the overall conclusion must be that intra-group postings still only occur occasionally and fall into one of the exceptional categories. Only if both criteria coincide can the need for a personnel leasing licence be denied.
However, it should be noted that the provisions of the Posted Workers Act must be complied with regardless of this.
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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.
