What?
Without much media attention, an amendment to Ordinance 2 to the Labour Act (ArGV 2) came into force on 1 July 2023, which relaxes the maximum working hours regulations in information and communication technology (ICT) companies, as well as in auditing, trust and tax advisory firms. Various solutions have been adopted in the two sectors.
(1)
Employees in the ICT sector who carry out project-related or deadline-driven tasks are now allowed to work longer under certain circumstances. Specifically, working hours can be extended to up to 17 hours per day if the work is carried out in the context of international cooperation, for example due to different time zones or unforeseeable urgent tasks. Previously, this daily working time was limited to 14 hours. In addition, the daily rest period in such cases can be reduced from 11 to 9 hours or interrupted several times a week.
Practical example: An IT service provider works closely with a team in the United States. Due to the time difference, the employees in Switzerland do not start work until the afternoon in order to maximise the overlap with the US team. Thanks to the new regulation, they can now organise their working hours more flexibly and work longer hours when there are bottlenecks on projects without violating the labour law.
(2)
Specialists and managers in auditing, fiduciary services and tax advice benefit from the changes. Specialists and supervisors (those who earn at least CHF 120,000 per year or have a higher education qualification) can now work according to an annual working hours model that allows them to better manage seasonal fluctuations. An annual target number of hours is set out in writing. This means that the general maximum weekly working hours and overtime are partially suspended. Employees in these sectors can now work up to 63 hours per week and up to five hours on nine Sundays per year without the need for official approval.
Practical example: In an accounting firm that specialises in auditing companies’ annual financial statements, the workload increases sharply at the end of the year. During these months, skilled workers and managers often work beyond the usual 42-hour week. With the new regulation, the company can flexibly distribute the workload over the entire year without having to constantly monitor the maximum working hours.
So What?
It has been the case for some time that employees in these sectors have been working more than the maximum hours allowed under labour law and have not even been recording their working hours. This was considered good form in the companies concerned and was a necessary prerequisite for receiving bonuses and promotions. This practice is not legal and can lead to retrospective claims by employees. Violations of labour law (e.g. night and Sunday work) can also result in severe official sanctions, including prosecution of the persons responsible.
Do What?
The partial flexibilisation of working time regulations is an opportunity for employers in the sectors concerned to regulate the working hours of employees qualifying for the relaxations in accordance with the Labour Act, thus eliminating considerable legal risks.
N.B.: The relaxations described are narrow! All models that completely dispense with the recording of working hours (‘trust-based working hours’) are still not permitted. All other employees outside of these sectors (i.e. management consultants, lawyers, architects) are also excluded.
Incidentally, it is the employer’s duty to ensure that employees always record their working hours!
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