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Old 08.05.2011, 22:14
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Sick Leave Legal Entitlement - Help Needed Please

I hope someone can help as I'm being put under a lot of pressure to sign a contract really soon. I've searched the internet and these forums and haven't been able to come up with much information so hope someone can help.

My question is - what's the legal minimum for employers to pay sick leave? From talking to my insurance company I get the impression that the employer must pay a minimum of 3 weeks in the first year rising to 3 months from the second year of employment onwards. However, the agency that want to employ me say that as I am "a contractor" they won't pay me any sick pay if I'm sick. My understanding is that despite being "a contractor" I would be an employee of the agency under Swiss law and so they are obliged to pay me the statutory minimum sick pay. Interestingly the agency want me to sign a waiver waiving any claim to sick pay, which kind of suggests they know they are legally obliged to pay it, despite what they say.

Internet searching, including official Swiss websites, gives me no more specifics than saying "employers must pay sick leave for a limited period of time". Searching this forum all I was able to find was a statement that "bad employers won't pay sick leave at all". Whether that would be legal was not clarified.

I'd really appreciate it if anyone could shed any light on whether this *is* legal and on whether this is common practice relating to contractors and agencies. The client of the agency is one of the major Swiss banks. The agency claim to have been a preferred supplier of this bank for over ten years.

Thanks in advance for your help!
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Old 08.05.2011, 22:19
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Re: Sick Leave Legal Entitlement - Help Needed Please

Welcome to the forum. Perhaps this site ( run it through Google Translate if needed ) might shed some light.

http://www.arbeitsrecht-info.ch/krank.htm
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Old 08.05.2011, 22:34
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Re: Sick Leave Legal Entitlement - Help Needed Please

Thanks very much for that, very useful link that explains the legal situation. The only exception seems to be if the employer has insured against their liability, they can avoid payment to the extent to which they are insured. This is exactly what my previous agency did. They fully insured the sick leave costs, and the passed the insurance costs on to me in full.

I have two more follow up questions that are not specifically answered in the link above. Do the rules apply equally to 'contractors' like myself, who are employees of the agency and not employees of the ultimate client? I would think yes, since we are still employees (of the agency) and so Swiss employment law rights should still apply to us. The other question is, is it possible to waive these rights, as I am being asked to do by this agency? I have seen that some Swiss employment rights can be waived within a contract. In this case, they are not even offering me any incentive or compensation for waiving these rights. Is it legal to ask me to waive them? If I do sign a waiver, is it enforceable? Conversely, could I successfully sue to obtain my sick leave entitlement, despite the agency's view that they're not obliged to give me any?

By the way I'm not sick at the moment, I just don't want the risk hanging over my head of 3 months sickness with no money coming in. (The agency does offer a 3rd party insurance policy that kicks in after 90 days, capped to the unemployment insurance payment level i.e. CHF10.500/month. My previous agency's/employer's insurance kicked in at 3 days and was up to 80% of actual salary).
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Old 08.05.2011, 23:11
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Re: Sick Leave Legal Entitlement - Help Needed Please

It is quite simple actually.

Who pays you, and how? If there is a company (the agency, or a consultancy firm) pays you monthly, you have a contract with them on the long term, then they have to accept sick days.
If you are paid directly on a daily or hourly schema, then the sick days are for you; you can however subscribe insurances that will cover you in case of issue.
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Old 08.05.2011, 23:32
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Re: Sick Leave Legal Entitlement - Help Needed Please

Thank you again!

I am paid monthly, by the agency. Does that make them responsible for paying my sick days (up to the regional limits)?

Is there any way that they can avoid this responsibility, e.g. if they get me to sign a waiver?
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Old 09.05.2011, 07:29
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Re: Sick Leave Legal Entitlement - Help Needed Please

CamperVan, contact Jenny to see if she can help you out, she has been very helpful to our members with insurance issues, etc.
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Old 09.05.2011, 17:05
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Re: Sick Leave Legal Entitlement - Help Needed Please

Thanks MusicChick. Would I be contacting Jenny for quotes on sick pay (KTG) insurance, or for advice on what the law says the employer can do (or both)?
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Old 09.05.2011, 17:13
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Re: Sick Leave Legal Entitlement - Help Needed Please

Well the agency is insisting that they won't pay sick pay, on the grounds that they can't afford the impact to their bottom line profit. Thanks to the help on this site I have pointed them to the relevant Swiss law, SR220 Art 324a/b. Will be interesting to hear their response.
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Old 09.05.2011, 17:17
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Re: Sick Leave Legal Entitlement - Help Needed Please

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Well the agency is insisting that they won't pay sick pay, on the grounds that they can't afford the impact to their bottom line profit. Thanks to the help on this site I have pointed them to the relevant Swiss law, SR220 Art 324a/b. Will be interesting to hear their response.

there response will be "see ya, plenty of other contractors out there who will accept our terms"

so your a contractor and want the agency to pay you sick leave?? er ok

A bit odd that your making such an issue out of it, planning to take a few sickies??
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Old 09.05.2011, 17:26
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Re: Sick Leave Legal Entitlement - Help Needed Please

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A bit odd that your making such an issue out of it, planning to take a few sickies??
Seems it's the agency making an issue of it with their waiver.
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Old 09.05.2011, 17:29
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Re: Sick Leave Legal Entitlement - Help Needed Please

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Seems it's the agency making an issue of it with their waiver.

in all the years I was contracting here the setup was simple, daily rate is X if you want hols and sick days then it was X-Y, funnily enough everyone declined the sick pay option. That was one of the 'big' agencies.
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Old 09.05.2011, 17:29
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Re: Sick Leave Legal Entitlement - Help Needed Please

As a contractor I was always liable for paying my own sickness insurance, one of the perks of the job .
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Old 09.05.2011, 17:32
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Re: Sick Leave Legal Entitlement - Help Needed Please

Last time I did permie payroll over here - IE contractor with an agency doing the work - it was built into the pay. There was an expense allowance, inline with kantonal guidelines, and the sick/holiday pay pro-rata-ed in.
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Old 09.05.2011, 17:48
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Re: Sick Leave Legal Entitlement - Help Needed Please

All my contracts so far here in Switzerland have had this insurance built in. I paid for the premiums, no problem with that - they were deducted by the agency. But as an individual, I can't get the same premiums that they can get as an agency, by a long shot. I'm looking at paying 4-5 times more as a private individual, for inferior coverage, if I'm even eligible, which I'm probably not.
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Old 09.05.2011, 17:52
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Re: Sick Leave Legal Entitlement - Help Needed Please

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All my contracts so far here in Switzerland have had this insurance built in. I paid for the premiums, no problem with that - they were deducted by the agency. But as an individual, I can't get the same premiums that they can get as an agency, by a long shot. I'm looking at paying 4-5 times more as a private individual, for inferior coverage, if I'm even eligible, which I'm probably not.

so self insure then, simple

how many sick days have you had in your previous contracts, now work out how much they really cost you.

I don't know any contractors here who have taken the +sick days rate, are you really that sickly???
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Old 09.05.2011, 18:39
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Re: Sick Leave Legal Entitlement - Help Needed Please

I never had an option to take a +sick days rate or not, it was all mandatory (unless I missed an option). I had about 3 days off paid sick leave, so I probably broke even on the insurance payments.

Self insure means I need to put aside a pot of money = about 0.8 x Zurich scale (3 weeks in year 1, 8 weeks in year 2, rising +1 week / +1 year). I guess that's do-able. It kind of grates, though, to self-insure for a benefit the employer is legally obliged to provide at their expense.

The agency are disarmingly honest about this. They say there is no legal basis for what they are doing, and if it came to court, they would probably lose. But they also say this is standard industry practice for 'contractors' (technically a non-existent category in Switzerland). I guess they are right, from the responses here? They say that the only agency (apart from my previous I guess) that operates a paid sick days policy is Harvey Nash CH, and only because UBS forced them to as a condition of being their preferred supplier. NB I do not work for Harvey Nash CH, nor for UBS.

Well it's all very interesting.
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Old 09.05.2011, 19:49
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Re: Sick Leave Legal Entitlement - Help Needed Please

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there response will be "see ya, plenty of other contractors out there who will accept our terms"

so your a contractor and want the agency to pay you sick leave?? er ok

A bit odd that your making such an issue out of it, planning to take a few sickies??
as a contractor, I'd agree with you - that is why contracting fees are higher, to cover the risk, the time of financing and balancing books, and insurance, sick leave, vacation.

But here CV isn't a contractor... he is a contractor for the company, but working as an employee for the agency, methinks. So I am sure that he is not getting the high money perk, and if the agency takes away the sick leave he is at risk.

Note that I'd say that the agency is at risk... My guess is that he can take the employment, and IF he gets sick, then he can sue or make the agency attentive to the fine print of the law.
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Old 09.05.2011, 20:17
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Re: Sick Leave Legal Entitlement - Help Needed Please

Hi,

The agent is HIS agent! He does not work for the agent at all, the agent finds work & collects fees on his behalf.
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Old 09.05.2011, 20:26
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Re: Sick Leave Legal Entitlement - Help Needed Please

True I am not getting megabucks from this contract, as far as I can tell I am getting a similar or smaller total package to the equivalent permies. And yes, in effect I am a "permie" for the agency, that's how the contract is written anyway. I'm sure the contracts are a kind of legal fiction of course.

Possibly what is going on is that the company thinks they are saving payroll costs by going through the agency, whereas in reality the agency is just cutting corners by not funding benefits. It's a bit like outsourcing or offshoring, except I live in Switzerland and have a work permit. Who knows whether the actual company is aware what is going on, or cares. Maybe, maybe not.

I already have a job, so in this situation it might be me who's the one saying "see ya". I'll have to think it over. Thanks to everyone for your info and input, it is much appreciated.
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Old 09.05.2011, 20:30
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Re: Sick Leave Legal Entitlement - Help Needed Please

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Hi,

The agent is HIS agent! He does not work for the agent at all, the agent finds work & collects fees on his behalf.
Well that's not how the contract is written. In the contract I'm the agent's employee. My understanding is, that's about the only possible legal basis for an agency in Switzerland. "Body shopping" labour, like they do in the UK, is called "labour leasing" here, and is so restricted it might as well be illegal. Most, if not all, of the agencies operating in Switzerland don't have labour leasing licences. Apart from anything else, they have massive capital reserve requirements to ensure they can pay their staff if the client defaults.

But yes in a practical sense you are right. But that's not how it's constructed in law.
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