International Construction Law Review
CORRESPONDENTS’ REPORT
SWITZERLAND
POSTING OF WORKERS: NEW SWISS LIABILITY RULES1
HUBERT STÖCKLI2 AND ROGER BIERI3
The Partial Revision of the Swiss Posting of Workers Act (PWA), adopted by the Federal Assembly on 14 December 2012, came into effect on 15 July 2013. The new law imposes on companies in the construction and construction-related industries far-reaching liability in connection with violations of terms and conditions of employment. The new liability rules apply not only in cases involving sub-contractors from outside Switzerland, but include also those in which only Swiss companies are involved. The scope of liability now goes beyond simple compliance with existing minimum wage standards and makes prime contractors liable also for the consequences of construction accidents. The authors discuss the main changes to the law and examine the effects of the new liability rules in a set of brief case studies.
I. REVISION OF THE POSTING OF WORKERS ACT
1. Background
In connection with the amendment to the Accompanying Measures on the Free Movement of Persons,4 a revision of the Posting of Workers Act (PWA)5
1 These remarks were originally published in the online journal “Jusletter”, 24 June 2013, in German. Some minor adjustments to the original text have been made for the present version in order to reflect the current stand of the legislation. The authors would welcome comments from readers, in particular, from an international point of view. They can be reached at hubert.stoeckli@unifr.ch or roger.bieri@unifr.ch. The authors would like to thank Mr Hal Wyner for the English translation.
2 Prof. Dr. iur., M.C.L., Professor of Civil Law at the University of Fribourg, Switzerland, Director of the Institute for Swiss and International Construction Law.
3 Mlaw, attorney-at-law, research assistant at the Chair for Civil and Commercial Law of the University of Fribourg.
4 See the Message of the Federal Council of 2 March 2012 on the Federal Act on the Amendment of the Accompanying Measures for the Free Movement of Persons (BBl 2012 3397; hereinafter, “Message”). The decision was later made to treat the question of “joint and several liability” separately from the other issues. The first part of the revision already came into effect on 1 January 2013 and 1 May 2013. On the two rounds of partial revision, see below, at I/2.
5 Up until 31 December 2012, the name of the law, which dated from 8 October 1999, was the “Federal Act on Minimum Working Conditions and Wage Standards for Workers Posted to Switzerland from Abroad and Accompanying Measures” (SR 823.20). For the sake of simplicity we will, in the following, refer to the law as it stood on 1 May 2013, as the “Posting of Workers Act” (or, in abbreviated form, as the “PWA”), the official short-form name (and abbreviation) of the law as of 1 January 2013. We will use the term “revised Posting of Workers Act” (or, in abbreviated form, “revPWA”) to refer to the PWA as partially revised on 14 December 2012, which came into effect on 15 July 2013.
The International Construction Law Review [2014
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