Art. 13 para. 3bis ArGV 1 – Does a business trip abroad count as working time?
With business trips abroad, the question arises to what extent the time of the business trip counts as working time. A new provision adopted by the Swiss Federal Council on 18 September 2020 as part of an amendment to the Ordinance 1 to the Swiss Federal Employment Act is intended to provide clarity in this respect. Due to the principle of territoriality, this provision only applies to situations that occur in Switzerland.
Business travel time as working time
On 18 September 2020, the Federal Council passed an amendment to the Ordinance to the Swiss Federal Employment Act (ArGV 1) which will enter into force on 1 November 2020.
Among other provisions, art. 13 para. 3bis ArGV 1 has been adopted. This provision provides for employees who travel abroad in the course of their work, that at least the outward and return journey travelled in Switzerland is considered to be working time in its entirety, regardless of the means of transport used and with no actual work activity required. However, as in the case of domestic business trips, the time the employee would have spent on the journey to the normal place of work can be deducted from the travel time (art. 13 para. 2 ArGV 1).
The wording "at least" leaves some room for interpretation, which could lead to employers treating business trips in Switzerland and abroad differently when counting them towards working time.
The new provision also states that outward and return journeys taking place at night and on Sundays do not require a permit. However, this does not exempt employers from complying with the provisions of the Swiss Federal Employment Act and its Ordinances with regard to additional time, additional rest and salary supplements.
Business travel time abroad
The Swiss Federal Employment Act and its ordinances are not applicable to business trips abroad due to applicable public international law principle of territoriality. For this reason, and in the absence of a uniform practice regarding the consideration of business travel time abroad in the calculation of working hours, there will continue to be ambiguities in regard to business trips abroad.
In the case of longer business trips abroad, it can be argued that not the entire business trip time is to be counted as working time, since the employee also pursues private activities and needs during the business trip (observance of rest periods, sleeping, watching movies on the plane, etc.) and thus this "privately" used time is to be deducted from the working time.
In order to avoid discussions, it is therefore recommended to clearly stipulate in the employment contract how the travel time abroad is to be counted towards working hours, subject to any mandatory provisions of foreign law. The interests of the employee (such as the possibility of sufficient rest) as well as the interests of the employer should be taken into account in the concrete formulation of the regulation.
Marco ToniPartner Attorney at law
Marco Toni, attorney at law, is a partner in our Zurich office. He focuses on domestic and international M&A transactions, private equity, corporate governance and general corporate, stock exchange and capital markets laws.T: +41 43 434 67 15 M: +41 79 557 62 15 E: email@example.com