Recording working hours correctly

Update

Recording working hours correctly

Brigitte Zulauf
Leading Partner, Corporate Support Services

The Swiss Federal Labour Act (ArG/LTr) has been in force since 1966, and is based on the Factories Act of 1877. As a result, the rules on recording working hours are no longer adequate to modern working arrangements. In recent years, many companies have failed official inspections of their timekeeping set-ups. Since 1 January 2016, new rules have been applied. They’re contained not in the act itself, but in Ordinance 1 to the Labour Act (ArGV 1/OLT 1).

To enable the Labour Act still to be modernised, we’re likely to see calls from employers, and in some cases from employees, for further changes to the law; some are already being debated in parliament.

Current rules contained in the law

At the heart of the Labour Act are measures designed to safeguard the health of employees. The rules governing working hours should also be seen against this backdrop. However, the Labour Act doesn’t apply to all organisations. It applies unrestricted to around 240,000 establishments employing some 2.6 million people. But it doesn’t apply to many types of establishment, including establishments in public transport and agriculture, and private households (except for the minimum age, which applies to the last two). In the case of public sector bodies, the Labour Act ultimately essentially only applies with regard to the general protection of health, but not to working time and breaks. [1]

[1] SECO guide to the Labour Act and Ordinances 1 and 2, February 2016 (not available in English)

The duty to log working hours derives from Art. 46 ArG. Employers are obliged to provide the authorities responsible with the corresponding schedules and documentation to enable their compliance with the requirements to be checked. Above all, organisations must make the following information accessible and keep records for five years (Art. 73 ArGV 1 lit. h):

Working time per day and per week, including overtime and time off in lieu, and information on when these hours were worked (Art. 73 ArGV 1 lit. c)
Rest days or days off in lieu granted per week, provided these do not regularly fall on a Sunday (Art. 73 ArGV 1 lit. d)
Location and duration of breaks of one half hour or more (Art. 73 ArGV 1 lit. e)
Statutory extra pay and/or time bonuses (Art. 73 ArGV 1 lit. h)
Beginning and end of hours worked, including overtime and time off in lieu (per day and per week) (Art. 73 ArGV 1 lit. c)

Timekeeping is unproblematic for people working fixed hours with prescribed breaks. Here you only have to note any deviations or discrepancies. You’ll find more tips on comprehensive timekeeping here (not available in English).

The requirements often don’t match the practical reality, as employers and employees want working time to be flexible. It’s no secret that many employers don’t adhere fully to the legal requirements, especially companies with employees with trust-based working hours.

New timekeeping rules

With the new rules designed to make timekeeping easier, the relatively complicated timekeeping rules laid down in the Labour Act continue to apply unrestrictedly, with violations liable to prosecution. This is a key consideration for companies deciding whether to record the working time according to the new rules or continue to record hours in detail, including all the relevant requirements – in line with the norm – or whether to introduce simplified arrangements for certain groups.

A word on the actual changes: the Federal Council has added two new articles to ArGV 1. [2] The excerpt below from the SECO guide shows the new rules in the form of a table. You can find the entire guide here (not available in English).

[2] Art. 73a ArG on dispensing with timekeeping, and 73b ArG on simplified timekeeping

What’s involved in implementing the new arrangements?

Simplified timekeeping

On the basis of the Workers’ Participation Act (MWG), private business establishments with more than 50 staff can elect employee representatives to exercise specific rights of information and consultation (for example regarding the impact of business on employees’ work, health and safety at work as per the law on accident insurance, and employee protection as per ArG 48). Otherwise each employee is entitled to these rights directly. If an establishment already has employee representation, it shouldn’t take too long to implement simplified timekeeping. In smaller establishments or companies without employee representation, the company has to budget enough time to reach individual agreements with each person affected (informing them, drawing up and signing the agreement, etc.). The effort involved can vary accordingly.

Dispensing with timekeeping

Even in organisations with collective labour agreements, the time required to properly implement the process of dispensing with timekeeping shouldn’t be underestimated. The employee organisation must agree to the following points:

Certain categories of employees to be given working hour autonomy on the basis of objective criteria
Pay level (at least CHF 120,000 gross annual pay)
Health measures
Officer responsible for matters regarding working hours

Each person affected must personally agree to these arrangements. The health-related measures should reflect the latest scientific insights, otherwise the company runs the risk of being liable for damages in the event that employees have stress-related health problems further down the line (Duty of care on the basis of Art. 328 of the Code of Obligations (CO)). The officer responsible has to make line managers aware of the issues related to working hours and time off, monitor employee workload on a regular basis, support employees who have problems with their working time, and propose measures in good time if action has to be taken. This person is also the point of contact for the social partners to the collective labour agreement in such matters.

Controls

Opinions are divided as to the extent to which there will be an increase in inspections by the relevant bodies. In the past they conducted only sporadic checks on companies. Employers that failed to comply with the rules or were unable to present detailed timekeeping records when inspected had six months to take steps to ensure compliance with the law.

In November 2015, organisations were given a tool to simplify compliance with the rules on working time. Companies needing to take action must budget a certain amount of time for implementation – including the time required by the authorities. Depending on the resources available to the cantonal authorities, they are likely to check compliance more frequently. Added to this, an employee can call the authorities at any time if they suspect their employer is failing to comply. By law the authorities have to respond.

Autonomy in terms of working hours

It remains to be seen how working hour autonomy can be achieved in practice. Here are a few possibilities:

Giving staff the right to determine the number, location and distribution of hours worked themselves. We recommend formulating this in writing.
The nature of the work and the way it’s organised must permit self-determination. For example, it’s more difficult for people whose job requires collaboration with other staff or customers to determine their own hours.
Ability to determine own hours: in practice, employees need sufficient leeway in terms of deciding on and organising their work, plus the ability to determine their own hours autonomously.
Line managers have to be able to evaluate employees’ performance without reference to their working hours.
No more normative influence: besides formal directives (regulations, contracts, etc.) there are business- and industry-specific norms and value systems that are opposed to the autonomous self-determination in terms of working hours.

Possible solutions

Different solutions may be appropriate depending on an organisation’s size, industry and headcount. Answering the following questions will help find the best approach:

Do the new rules apply to the organisation as a whole, to individual areas of the business, or not at all?
What people aren’t subject to these rules – apart from the health-related provisions – because they constitute an exception in the personal scope of the Labour Act (for example, senior management, travelling salespeople or research staff)?
What employees qualify for simplified timekeeping or a dispensation from timekeeping? Is the effort of simplifying or dispensation timekeeping worth it?
Is there a collective labour agreement for the group of employees to whom the dispensation from the timekeeping requirement applies, or can the company sign up to such an agreement without the prospect of too many conditions or consequences?
What additional costs can the company expect to incur to implement the new arrangements properly in the form of
- Extra pay
- Implementation costs, for example, implementing timekeeping hardware and software, other implementation costs such as amendments to employment contracts and regulations, employee representation, and measures related to psychosocial health, creating additional line management positions or costs related to collective labour agreements
- Recurring costs (expenditure and time) analogous to implementation costs

Timekeeping solutions

First, a company should check whether its existing software can entirely meet the complex timekeeping requirements of the Labour Act. If it has to replace its existing solution or invest in new software, depending on its size and needs the company should take account of the fact that staff are becoming more and more mobile and work will no longer necessarily be performed at a fixed workplace. There are applications, for example, that allow employees to record their working time on their mobile phone and then send this information to their employer.

Amendments to employment contracts and regulations

Organisations with trust-based working hours or arrangements that are not in compliance with the law should think about how much they are going to amend employment contracts and regulations. Changes require considerable administrative work. Since a company has to take account of the relevant periods of notice pending changes of contract, it’s not going to be possible to introduce new arrangements from one day to the next. Since employees on trust-based working hours are often not paid overtime either (this is covered by their salary), not changing contracts and regulations could lead to an increase in personnel expense. Otherwise reductions in salary might be necessary.

Summary

The issue of timekeeping and modifying timekeeping arrangements shouldn’t be underestimated. It’s a challenge that companies have to meet – although there are different ways of going about it. Addressing the issue can increase employee awareness and knowledge of the rules set down in employment law. Recruiting and developing good people is a major challenge for many organisations. So they should be aware that their present solution to the timekeeping issue – or any solution they implement in future – may affect their reputation as an attractive place to work.

Article overview

Update