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Old 30.10.2012, 11:01
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Is there a law concerning personal holidays (paid leaves) that regulates...

That regulates the following issues:

1. If the annual paid leaves specified in the contract are not used up because of (1) employee personal willing or (2) employer's reason (such as the project does not allow the holiday period wanted by the employee), what to do with them? Get lost? Get accumulated to the next year? Get paid?

2. In which circumstances the employee can ask for unpaid leaves in additional to the paid leaves for personal reasons, and in which condition it can be granted?
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Old 13.11.2012, 10:28
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Re: Is there a law concerning personal holidays (paid leaves) that regulates...

Hi, re 1:
- they get accumulated (statute of limitation is 5 years); they cannot be paid out while still employed (Art. 329d CO)

re 2:
- there is no right to be granted unpaid leaves, i.e. if your employer does not agree, the only option you have is to give notice

Hope this helps
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Old 22.11.2012, 17:34
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Re: Is there a law concerning personal holidays (paid leaves) that regulates...

Can a company mandate that it's either taken in full or it lapses if not used within a calendar year? I can't seem to find any official document on it in Switzerland.
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Old 22.11.2012, 17:50
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Re: Is there a law concerning personal holidays (paid leaves) that regulates...

No, the company cannot do this. The holiday entitlement can neither be waived nor paid out. The company can however more or less force you to take your holidays, i.e. you can not accumulate if they do not let you.
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Old 22.11.2012, 20:48
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Re: Is there a law concerning personal holidays (paid leaves) that regulates...

Thanks for the prompt response, EamesZRH.

But I'm still not sure if there are national laws governing this area here. My company is adamant my holiday allowance can't be carried over even for a day and I'm having tough times proving they're wrong. So any official references would be really appreciated.

The Article 329c (not 329d which is quoted before) doesn't say anything about it.

Art. 329c

c. Consecutive weeks, timing

1 The holiday entitlement for a given year of service is generally granted during that year; at least two weeks of holiday must be taken consecutively.1

2 The employer determines the timing of holidays taking due account of the employee’s wishes to the extent these are compatible with the interests of the business or household.

http://www.admin.ch/ch/e/rs/220/a329c.html
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Old 23.11.2012, 17:25
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Re: Is there a law concerning personal holidays (paid leaves) that regulates...

Please refer to Art. 329a which says:

2. Holidays
a. Annual entitlement
1 The employer must allow the employee during each year of service at least four weeks’ holiday and five weeks’ holiday for employees under the age of 20.1

This is a compulsory clause of employment law, i.e. the employer cannot impose any other regulation which would waive the holiday entitlement in whatsoever way, i.e. a clause which says that the entitlement lapses at the end of the year is invalid, always, unless, and this is the only exception, when the employer specifically told you to go on holiday, and you refused.

If your company speaks German, refer them to this judgement of the Zurich labour court (rather old, but still valid):

ZR 93/1994 Nr. 50, S. 163
Art. 329a f. OR.

Ferienbezug des Arbeitnehmers.

Eine Büroordnung, die vorsieht, dass bis zum Ende des Jahres nicht bezogene Ferien nur mit Einwilligung des Arbeitgebers aufs neue Jahr übertragen werden können, hält vor OR 329a nicht stand.

Der Kläger forderte die Bezahlung nicht bezogener Ferien. Der Beklagte widersetzte sich dem mit dem Hinweis, dass die Ferien aus dem Jahre 1990 auf Grund des Büroreglementes nicht ohne seine Einwilligung, welche er im konkreten Fall verweigert hätte, aufs neue Jahr hätten übertragen werden können.

Aus einem Urteil des Arbeitsgerichts Zürich vom 19. September 1991:

"Gemäss Art. 329a OR hat jeder Arbeitnehmer Anspruch auf mindestens 4 Wochen Ferien pro Dienstjahr. Dieser Anspruch besteht aus zwei Elementen: Der Arbeitgeber muss dem Arbeitnehmer zusammenhängende Ferien gewähren und ihm den Lohn bezahlen, den er während der Dauer der Ferien verdient hätte (Art. 329c und d OR). Konnten bis Ablauf des Arbeitsverhältnisses nicht alle Ferien bezogen werden, so muss der nicht bezogene Teil ausbezahlt werden, da es sich bei diesen Bestimmungen um relativ zwingende Regelungen des Arbeitsrechtes handelt. Das Abgeltungsverbot gilt nur während der Dauer des Arbeitsverhältnisses (vgl. U. Streiff, Leitfaden zum Arbeitsvertragsrecht, 4. A., N 8 zu Art. 329d OR). Gemäss Art. 341 OR ist während des Arbeitsverhältnisses und einen Monat danach auch kein Verzicht auf unabdingbare Vorschriften des Gesetzes möglich, weshalb die Büroordnung in diesem Punkt nicht Vertragsbestandteil werden konnte. Der Kläger hat daher Anspruch auf die Bezahlung der nicht bezogenen Ferientage."
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Old 23.11.2012, 19:43
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Re: Is there a law concerning personal holidays (paid leaves) that regulates...

Thanks a million for your help again, EamesZRH. That case seems relevant and convincing, the only problem I couldn't quickly find any references to it online. And referring my company to EF isn't going to work, I'm afraid. But I really appreciate your invaluable input here
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Old 23.11.2012, 19:59
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Re: Is there a law concerning personal holidays (paid leaves) that regulates...

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Can a company mandate that it's either taken in full or it lapses if not used within a calendar year? I can't seem to find any official document on it in Switzerland.
They cant lapse it but they can insist that you take it particularly where there is a significant build up of accrued days. The reason being that unused leave becomes a liability that has been accrued at a lower pay rate then what the company may be subsequently required to pay it in future, hence they are perfectly entitled to require it be reduced in a given year. This is normally done by coming up with a mutually suitably time to employee and employer but they are entitled to manage down the liabilities associated with unused leave.
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Old 23.11.2012, 20:05
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Re: Is there a law concerning personal holidays (paid leaves) that regulates...

I can't quote you the law for the Canton of ZH, but as an employer, I won't allow vacation to be carried into a new year. The simple reason being that it reduces the flexibility for the other staff to plan their own vacations if someone throws in a 6 week trip to the Maldives for example. On the other hand, I'm not averse to allowing single days off though, it's all about give and take.
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Old 23.11.2012, 20:33
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Re: Is there a law concerning personal holidays (paid leaves) that regulates...

My employer says all untaken leave lapses at the end of the year. It's illegal. If you hassle HR and a manager approves, they will carry it over only until March the following year. This is also illegal.

As we only get 20 days leave a year, I think no one has actually had any left (by April the following year) to make it an issue yet.
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Old 23.11.2012, 21:55
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Re: Is there a law concerning personal holidays (paid leaves) that regulates...

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My employer says all untaken leave lapses at the end of the year. It's illegal. If you hassle HR and a manager approves, they will carry it over only until March the following year. This is also illegal.

As we only get 20 days leave a year, I think no one has actually had any left (by April the following year) to make it an issue yet.
They can give you notice if they want , which is legal, so in the end not worth making a big fuss about.
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Old 23.11.2012, 22:02
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Re: Is there a law concerning personal holidays (paid leaves) that regulates...

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They can give you notice if they want , which is legal, so in the end not worth making a big fuss about.
Not relevant. Doesn't mean they're not breaking the law.
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Old 24.11.2012, 06:37
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Re: Is there a law concerning personal holidays (paid leaves) that regulates...

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My employer says all untaken leave lapses at the end of the year. It's illegal. If you hassle HR and a manager approves, they will carry it over only until March the following year. This is also illegal.

As we only get 20 days leave a year, I think no one has actually had any left (by April the following year) to make it an issue yet.
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Not relevant. Doesn't mean they're not breaking the law.
If nobody's lost any yet, then they haven't broken the law yet. They are within their rights to say it doesn't carry over, as long as they make you the it by the end of the year.
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Old 24.11.2012, 08:48
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Re: Is there a law concerning personal holidays (paid leaves) that regulates...

And if you refuse to take it they should be allowed to assume that you chose to use some of your days working in the office. Provided they notify you of this and provide suitable opportunity.

The entire post seems a bit pointless given the large number of public holidays and the swiss are generally very generous on allowing vacations. If th employer isnt then chances are the manager is an expat.
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Old 24.11.2012, 09:56
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Re: Is there a law concerning personal holidays (paid leaves) that regulates...

EamesZRH is correct and there isnt an HR department that doesnt know this. Of course many ignore the legal aspect and make their own house rules when they feel the need but for sure they all know it wont hold up in court.
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Old 24.11.2012, 10:03
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Re: Is there a law concerning personal holidays (paid leaves) that regulates...

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Thanks for the prompt response, EamesZRH.

But I'm still not sure if there are national laws governing this area here. My company is adamant my holiday allowance can't be carried over even for a day and I'm having tough times proving they're wrong. So any official references would be really appreciated.

The Article 329c (not 329d which is quoted before) doesn't say anything about it.

Art. 329c

c. Consecutive weeks, timing

1 The holiday entitlement for a given year of service is generally granted during that year; at least two weeks of holiday must be taken consecutively.1

2 The employer determines the timing of holidays taking due account of the employee’s wishes to the extent these are compatible with the interests of the business or household.

http://www.admin.ch/ch/e/rs/220/a329c.html

why not turn it round and ask them for the law that says it cant be taken over?

And always remember HR is not there for the benefit of the employee, HR is there to protect the company from the employees
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Old 24.11.2012, 10:52
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Re: Is there a law concerning personal holidays (paid leaves) that regulates...

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we only get 20 days leave a year
Wow, that sucks, I get 25 + 15 public holidays (3-4 of which fall on the weekend, depending on the year.

Tom
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Old 24.11.2012, 15:04
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Re: Is there a law concerning personal holidays (paid leaves) that regulates...

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Wow, that sucks
I'm aware of that. Which is why I've never had any holidays untaken that I've needed to carry over
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Old 24.11.2012, 19:35
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Re: Is there a law concerning personal holidays (paid leaves) that regulates...

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why not turn it round and ask them for the law that says it cant be taken over?

And always remember HR is not there for the benefit of the employee, HR is there to protect the company from the employees
I'm afraid in the absence of any applicable national law, company's HR policies is what we have to obey.
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Old 24.11.2012, 19:47
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Re: Is there a law concerning personal holidays (paid leaves) that regulates...

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The entire post seems a bit pointless given the large number of public holidays and the swiss are generally very generous on allowing vacations. If th employer isnt then chances are the manager is an expat.
That entire statement seems a bit pointless in light of the official data which shows that Switzerland is at the very bottom of holiday allowance league, at least, in Europe.

http://www.mercer.com/press-releases...ound-the-world

http://en.wikipedia.org/wiki/List_of...ave_by_country
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