In late 2016, the Swiss Federal Assembly adopted the revision to the Federal Act on Foreign Nationals (LEtr) in order to implement the initiative against mass immigration accepted by the people and the cantons on 9 February 2014 (article 121a of the Constitution (Cst.) and more generally to fight unemployment in our country.
A major feature of the change in the law is a requirement for employers to give notice of vacant positions when the unemployment rate exceeds a certain threshold for the profession in question (based on the 5-figure code from the Swiss Standard Classification of Occupations 2000).
This measure aims to ensure that workers available on the Swiss labour market take up the vacant positions offered, and to fight mass immigration, in particular from the European Union.
Concretely, employers will be required to inform their region’s employment services of vacant positions if the national employment rate for the relevant professional category stands at 5% or more. A transitional threshold of 8% will apply until 31 December 2019. This will give employers and the implementing authorities time to adapt their processes and resources to the new rules.
The Federal Council adopted the changes to the implementing ordinances on 8 December 2017. The new provisions will come into force on 1 July 2018.
The unemployment statistics
Unemployment rates are calculated based on statistics from SECO and measure the number of unemployed workers registered with the regional employment offices.
In 2016, average unemployment stood at 3.6% across all professions and all cantons, according to labour market statistics.
Under the 8% threshold, looking at the 2016 statistics the requirement to communicate vacant positions applies mainly to the construction and hotel sectors. Once the 5% threshold is in place however, 88 profession types out of the 383 listed will be affected. These will include retail employees, drivers, domestic staff and the catering and cleaning sectors.
According to the Federal Council, at the 5% threshold the requirement will apply to around 218,000 vacant positions out of the approximately 700,000 filled each year. With the bar set at 8%, the number will be less than 75,000.
Employers’ obligations and the procedure
The information employers are required to communicate includes:
– profession sought;
– activity and specific requirements;
– employment basis (part-time, etc.);
– start date;
– contract type: temporary or permanent.
Vacant posts can be communicated via the employment services internet portal, by telephone or in person.
For five working days, information about vacant positions will be accessible exclusively to job seekers registered with the public employment services. Employers will not be permitted to advertise elsewhere (for example, in a newspaper) before the end of this period.
The five days are counted from the day after the employment services confirm receipt of the information. Saturdays and Sundays and national, cantonal and regional public holidays are excluded.
Within three days of receiving complete details of a vacant post, the employment services will send the employer relevant jobseekers’ details, or inform them that no one fitting the profile is available.
Employers themselves will then decide which candidates they consider suitable. There will be no direction on this, and no justification will be required. Similarly, employers will be free to organise their recruitment process as they see fit.
However, they will be required to invite suitable candidates to an interview or skills assessment. If they do not do so, they will have to tell the employment services why.
Lawmakers refused to compel employers to justify a decision not to take a suitable candidate’s application further. Similarly, employers will not be required to justify why a specific candidate was not chosen.
However, they will need to provide the following information: 1) a list of the people they consider appropriate, 2) who they have called for interview or a skills assessment, 3) whether they have employed one of the candidates proposed, or 4) whether the position remains vacant.
The notification procedure will not apply to contracts lasting 14 calendar days or less. Neither will it apply to employment contracts offered to former apprentices or family members or to positions filled by staff (including interns) already employed within the employer’s own group.
The cantons will have the facility to ask the Federal Council to introduce a requirement to notify vacant positions for a specific profession for a maximum period of one year, if the employment rate for the canton in question is 8% or more (or 5% from 1 January 2020). This request can be submitted jointly by several cantons if they all meet the requirements.
Employers that intentionally breach the requirement to communicate vacant positions or to offer an interview or skills assessment will be liable for a maximum fine of CHF 40,000. If they unintentionally fail to comply, the maximum fine will be CHF 20,000.
This issue is important, both in the minds of the population and for the Swiss economy, and the parliament and Federal Council have taken the steps required to offer more opportunities to Swiss workers and strengthen the implementation of legislation regarding foreign nationals. The idea of requiring employers to notify vacant positions in order to reduce additional inflows of foreign labour is a good one, so long as compliance with international agreements such as the AFMP is maintained. It is however impossible at this stage to predict whether the desired results will be achieved, as this is the first time such a measure has been taken in Switzerland.
The transitory period is welcome, as the new requirement will oblige firms, and smaller businesses in particular, to reorganise, train specialised staff and perhaps even create legal departments. It will undoubtedly increase administrative costs for companies.
Lastly, it is important to note that the Federal Council has the power to change the threshold at any time, should the state of the labour market render this necessary.
The contents of this newsletter are not to be construed as a legal or tax opinion or advice. Should you require more information, please either email us or get in touch with your usual contact at CROCE & Associés SA.
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