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Old 17.05.2014, 10:39
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Worker's Rights/ Employment Rights/ Arbeitsrecht / Night Work/ On-Call/ Pikettdienst

Hello EF land... As I have recently had some issues with my place of employment, I started scouring the internet in search of info to resolve my worries/confirm my suspicions. As the relevant info is not available in English, it was a time consuming process - so I would like to start a discussion here concerning rights in the workplace, and perhaps amend all relevant information into a 'sticky' with relevant links included. I will add the links to the legal documents (in German) as I am able...


So, my story:


I work a 14 hour shift, from 5:30pm until 7:30 am. In my work contact, this is divided into 3 parts, 5:30 to midnight being normal work, midnight to 6am being 'pikettdienst' (on-call), and 6 am to 7:30 am being normal work again. I am required to remain on-premises at all time, in the event of an emergency. If an amergency does take place, such as a fire, I have less than 3 minutes to awaken, run to the alarm center in the building, and deal with the situation.


I was suspicious that this shift/work contract is in violation of Swiss labor laws, and here is what I found:


1)In order for a company to have employees doing regular night work, a special permit is required. The same goes for regular pikettdienst work (on-going, predictable, planned on-call availability)


2)During 'pikettdienst', when one must remain on site (as opposed to other forms of pikettdienst when one can remain at home), the hours of pikettdienst are considered as normal working hours. Therefore, a 14 hour shift is illegal (for night work, a maximum 8 hours out of 9 is allowed)


3)Pikettdienst is only allowed on a maximum of 7 days within a 28 day span. Special exceptions are possible, allowing for up to 14 days per 28 day period, but only if actual on-call services need to be performed less than 5 times per 28 day period (based on an average over the course of a year) This is only allowed by special permission in companies with an extremely small personell, and is decided by federal or cantonal authorities. In my situation, I work a minimum of 8 'pikettdienst' shifts in a 28 day period - illegal.


4)My shift ends at 7:30 am. If I am working again at 5:30 pm, that leaves 10 hours of off-time between shifts. This is in violation of the laws concerning 'ruhezeit', which call for a minimum of 11 hours between shifts.


5) Actual work performed during pikettdienst must be compensated at the normal hourly rate work, not at the 'pikettdienst' rate, ( the reduced amount usually given as compensation for having to be on-call or on-site). In my workplace, this is not compensated.


6) Regular night work must be compensated with a 10% supplement in either wages or time off, which does not happen in my workplace.


7) Federal law states that 'nightwork' begins at 11 pm and ends at 6am. In my contract, the hour between 11 and 12 pm is counted as normal work.


8) When a work contract is in violation of federal labor laws or the Code of Obligations, the illegal portion of the contract is considered invalid and is therefore subject to the norms of the law, (for example, in relation to working hours and compensation)


So, that's a start on this thread... please add your thoughts /experiences /questions if possible...


thank you!
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Old 17.05.2014, 10:51
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Re: Worker's Rights/ Employment Rights/ Arbeitsrecht / Night Work/ On-Call/ Pikettdie

Time to find a new job I think.
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Old 17.05.2014, 12:25
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Re: Worker's Rights/ Employment Rights/ Arbeitsrecht / Night Work/ On-Call/ Pikettdie

Sure, finding a new job goes without saying...but that is not what this thread is about. It is about clarifying worker's rights so that others may not have to put up with the same load of BS that i've had to deal with.


As I was doing my legal research, others told me things like " Well just speak to your employer and sort it out" or "Just go and talk to the Arbeitsamt office - they will tell you everything you need to know..."


Well, talking to the employer about these matters would surely get me fired immediately, with no recourse. (We're talking about upwards of 500,000 Franks that the company has 'saved' in the past few years by not fairly compensating employees/ not paying taxes - and that's just what I know about...). This is organized crime, after all...


And when I went to the Arbeitsamt for advice (where they allow only 15 minutes for the entire meeting...lol), they knew absolutely nothing. I'd ask them a question to confirm my findings, and they would take out the legal books to start looking for the relevant info - the research took me hours, so how is one to expect them to do the same amount of research in only 15 minutes? Add the language barrier on top of that, and it is apparent that only with plenty of spare time and motivation would one arrive at any definite answers, backed by legal documents. (Or hire a lawyer, who's fees would be above and beyond the budget of most people in a similar situation)


So, please leave your irrelevent comments about finding a new job, etc. for another thread...this thread is intended for factual info, not for advice.


Thank you for your understanding
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Old 17.05.2014, 12:39
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Re: Worker's Rights/ Employment Rights/ Arbeitsrecht / Night Work/ On-Call/ Pikettdie

Previous responder is correct, its time to find a new job. There is not the same standard of protection for employees in Switzerland as in a lot of other countries. Whilst their might be laws a company can just give you your notice at any time.

My experience indicates that there is not much in the way of due process. No warning process etc. If a company decide they don't like you they can let you go. In many countries knowing your rights is important but in your case I am not convinced it helps.

Based on what you have written it would seem that your employer doesn't show much regard for employees. So yes you could go question it but what does it bring anyway? I have issues with my employer and the advice I was given was either suck it up or leave.
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Old 17.05.2014, 13:02
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Thank you for your input, Neilsan...
Personally, I am not trying to keep my job. If my employer fires me, so be it. I do not wish to work for criminals, in any case.

There may not be any legal recourse if I am fired, as it can be very difficult to prove wrongful termination.
If anyone can contribute any info or experience on how one might go about proving wrongful termination, please share it here for the good of us all.
Neilsan, as to the advice you received about `suck it up or leave`, who gave you that advice? Your employer, or ill-informed co-workers?
If you feel that your contract is illegal in any (provable) way, you can meet with the Arbeitsrecht (Work rights) or WIRA (wirtschaft und arbeit) office in your canton, and they may very well be able to help you. For example, if you feel you have been unlawfully compensated (no matter what you may have signed on the contract - if it is in conflict with the law, it is invalid), then you are entitled to file a claim for all unpaid wages due - with a five year statute of limitations. This is a free and simple process for amounts under 30,000 CHF.

If your employer fires you for asking to be fairly compensated, this may be easily provable as wrongful termination and subject to an appropriate settlement as well

Again, thanks for your input to the thread. The more relevant info and experiences on here, the more it will help current and future workers to know or understand employment rights.
Keep it coming, EF people! Share your thoughts and experience - silence in the face of awareness of illegal activity is tantamount to complicity....

In addition, if you report the illegal working hours/contract/compensation to the appropraite authorities, and it is found that they have already been warned about such illegal activity in the past, they will now be PERSONALLY liable for all relevant fines - up to 540,000 Francs EACH PERSON who signed the illegal contract (not you, the employee, but just the employers - it is the responsibility of the employer to know and follow the law)
There is a due process available, should you wish to pursue it...

Last edited by 3Wishes; 18.05.2014 at 16:33. Reason: merging successive posts
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Old 17.05.2014, 13:47
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Re: Worker's Rights/ Employment Rights/ Arbeitsrecht / Night Work/ On-Call/ Pikettdie

I can't offer any links, but perhaps it would be helpful to others that read this thread to know where you found your information (website, etc.) so that they don't duplicate your efforts. Or so they can cross-reference any conflicting information.
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Old 17.05.2014, 13:50
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Why the groan? If an employee steals from an employer, it is considered a criminal offense. However, due to complacency/laziness/misinformation, when an employer steals from it's employees - they are generally told to 'suck it up or leave'.
Would you groan at me if someone stole your big blue car, and I knew how you could get it back, bigblue?

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I can't offer any links, but perhaps it would be helpful to others that read this thread to know where you found your information (website, etc.) so that they don't duplicate your efforts. Or so they can cross-reference any conflicting information.
Yes, 3wishes, I agree... As I stated in the first post, I will provide the links to the relevant official legal documents as I am able...
I'll be busy for the next few hours, but will try to post links supporting my findings later this afternoon.

sorry if you read this big blue, I got confused with a different thread!


My 'Why the groan`post was meant for the groaner, fatmanfilms

It is hard for me do the research, add the links, etc. all together - as the forum keeps making me log in over and over - I hit `submit post', I have to log in again, and what i've written has dissapeared
Here are some links, one by one in successive posts. Again, my goal is to compile all relevant info and links into a `sticky` for future reference.


If you do not understand German, you can copy and paste the text into Google Translator or some other translation service, but please ask a native German speaker to verify what is written...


First, working hours:


http://www.seco.admin.ch/dokumentati...x.html?lang=de

On- call (Pikettdienst) info:


http://www.google.ch/url?sa=t&rct=j&...EKGHOjQqodQ9qw

Last edited by 3Wishes; 17.05.2014 at 21:06. Reason: merging successive posts
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Old 17.05.2014, 14:22
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Re: Worker's Rights/ Employment Rights/ Arbeitsrecht / Night Work/ On-Call/ Pikettdie

Is there any trade union in the company? If not, try to speak with the union in the same sector
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Old 17.05.2014, 14:27
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General Labor Laws:

Arbeitsgesetz, SR 822.11 :
http://www.admin.ch/opc/de/classifie...049/index.html

Verordnung 1 zum Arbeitsgesetz, SR 822.111 :
http://www.admin.ch/opc/de/classifie...832/index.html


Verordnung 2 zum Arbeitsgesetz, SR 822.112 :
http://www.admin.ch/opc/de/classifie...835/index.html

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Is there any trade union in the company? If not, try to speak with the union in the same sector
Thank you FuriousRose - that is good advice. I have not heard of any trade union in this company, but it may fall within the realm of the gastronomy/hospitality union (in my situation)

I must say, that it seems that those who have posted so far are misunderstanding the purpose of this thread - I myself am not looking for any advice, sympathy, what have you. I am merely trying to get the info out there for the good of all. Have a discussion. Know the law. Seek the truth.

Personally, I originally found EF when searching for info - with my search query containing both the words English and Switzerland. I found it to be a wealth of information and a means of attaining more - and i'm sure most EF members have had a similar experience.

In my recent search for Swiss legal info concerning employment rights( that I can understand easily, as my german is far from perfect), all that came up in this forum (and on the web in general), are little tidbits here and there. Nothing concrete. No links. As such - it took me a long time to do my homework, and I would like to save others from the hassle that I had to go through.

Please, if you have relevant info to add to this thread, do so. It will eventually be compounded into an easy to follow `sticky`for everyone to use in reference to employment rights (that's my plan, at least)

Fatmanfilms - why the drive by groan? please explain yourself.

To those who share in the attitude of `time to find a new job` - where does this mentality come from? How are so many in our society complacent when it comes to white collar crime, even when they are the victims?

If I were to post on here that my mechanic had stolen my car, would you seriously respond with advice like "Time to find a new mechanic"?

Stand up for your rights, people! Do you not believe in justice?

If your contract is illegal, you can have the authorities anonymously come and check out the company. They will have to make new, legal contracts for everyone - or risk personal fines.

Those of you who are scamming your employees out of their benefits or lawful compensation, whether by yourself or with pressure from your superiors - know that you will not be able to hide behind the company name when the sh*t hits the fan - it will come out of your pocket, and not just be written off as a minor inconvenience for your shareholders. If you've signed the contract, you will be liable for the consequences if it is found to be illegal.

Last edited by 3Wishes; 17.05.2014 at 21:09. Reason: merging successive posts
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Old 17.05.2014, 16:04
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Re: Worker's Rights/ Employment Rights/ Arbeitsrecht / Night Work/ On-Call/ Pikettdie

Have you addressed their illegal behavior with your employer?
When did/will you file the legal complaint against your employer?
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Old 17.05.2014, 17:02
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Re: Worker's Rights/ Employment Rights/ Arbeitsrecht / Night Work/ On-Call/ Pikettdie

Catering... right................


As I've said before on other threads, GET IN CONTACT WITH YOUR LOCAL GASTRO SUISSE!!! for ANY problems in catering. They LOVE cleaning up our trade. Give them all the facts, and then they'll follow up!


Good Luck on your situation, they're not all bad out there.


GREG
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Old 17.05.2014, 17:04
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Re: Worker's Rights/ Employment Rights/ Arbeitsrecht / Night Work/ On-Call/ Pikettdie

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Fatmanfilms - why the drive by groan? please explain yourself.
There's usually no need to explain groans.
Nor do people who groan want to explain why they did.
(Ask yourself: would you ask everybody why they "thanked" one of your posts?)
Just accept them.

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To those who share in the attitude of `time to find a new job` - where does this mentality come from? How are so many in our society complacent when it comes to white collar crime, even when they are the victims?
Probably from experience. There's little to gain from openly fighting your employer while you still work for him. Actually, there's nothing to gain.
In small companies, the owner runs the show anyway: it's his ship and he runs it the way he wants. If he wants to run the ship into sands - let him.

While loyalty goes a long way in smaller Swiss companies, it's equally important to see the "point of no return", upon which it's time to move on.

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If I were to post on here that my mechanic had stolen my car, would you seriously respond with advice like "Time to find a new mechanic"? :roll eyes:
You learn fast.

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Stand up for your rights, people! Do you not believe in justice?
I do believe in justice. In Germany, there's the saying of "Recht haben und Recht gekommen sind zwei verschiedene Dinge", meaning that while you may "be in the right" doesn't mean that you will get justice automatically.

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If your contract is illegal, you can have the authorities anonymously come and check out the company. They will have to make new, legal contracts for everyone - or risk personal fines.
In theory, yes.
However, esp. in smaller companies it's usually relatively easy to figure out the tipster, which will quickly start a row of repercussions against the "SOB".


Just for perspectives: my employer asked one of my co-workers to investigate our current Pikett-Regime with regard to compliance to the law.
It turned out, of course, that it's simply illegal in large parts.
I presume, a new regime is coming (maybe next year), but until then, we're stuck with it.
Smaller companies usually test your willingness to engage in self-exploitation - whether actively or by neglect. They usually have less red-tape in day-to-day business in exchange.
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Old 17.05.2014, 17:43
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Re: Worker's Rights/ Employment Rights/ Arbeitsrecht / Night Work/ On-Call/ Pikettdie

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Thank you FuriousRose - that is good advice. I have not heard of any trade union in this company, but it may fall within the realm of the gastronomy/hospitality union (in my situation)




I must say, that it seems that those who have posted so far are misunderstanding the purpose of this thread - I myself am not looking for any advice, sympathy, what have you. I am merely trying to get the info out there for the good of all. Have a discussion. Know the law. Seek the truth.


Personally, I originally found EF when searching for info - with my search query containing both the words English and Switzerland. I found it to be a wealth of information and a means of attaining more - and i'm sure most EF members have had a similar experience.


In my recent search for Swiss legal info concerning employment rights( that I can understand easily, as my german is far from perfect), all that came up in this forum (and on the web in general), are little tidbits here and there. Nothing concrete. No links. As such - it took me a long time to do my homework, and I would like to save others from the hassle that I had to go through.


Please, if you have relevant info to add to this thread, do so. It will eventually be compounded into an easy to follow `sticky`for everyone to use in reference to employment rights (that's my plan, at least)
I try to google the union for the gastronomy sector and here is what I found:
Hotel & Gastro Union
Schweiz. Zentralverband der Hotel- und Restaurant-Angestellten
Freigutstr. 10
8002 Zürich
Tel. 044 / 201 31 36
Fax 044 / 201 31 39

Here is also link to their website. It's in German though
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Old 18.05.2014, 16:17
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Catering... right................

Thanks for your input, but I don't work i catering. Or a hotel.

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Just for perspectives: my employer asked one of my co-workers to investigate our current Pikett-Regime with regard to compliance to the law.
It turned out, of course, that it's simply illegal in large parts.
I presume, a new regime is coming (maybe next year), but until then, we're stuck with it.
Smaller companies usually test your willingness to engage in self-exploitation - whether actively or by neglect. They usually have less red-tape in day-to-day business in exchange.
If your pikett-regime is illegal, than you have the right to ask for compensation. If your contract is illegal, than the illegal sections are therefore invalid, and the your compensation/benefits must at minimum match the law. If you know it is illegal, and are afraid to ask your company to pay you legally, speak with the proper authorities. They will come and anonymously check the company's work contracts and hours, and will be forced to draw up new contracts and change the pikett-regime. As I stated, if they do not, they will personally be held accountable. After the new contracts are in place, you can file for compensation to cover what they have withheld from you, within a five year statute of limitations.

Why would you wait until next year?

Last edited by 3Wishes; 18.05.2014 at 16:35. Reason: Merging successive posts. Try the multiquote function. ;)
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Old 18.05.2014, 16:41
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Re: Worker's Rights/ Employment Rights/ Arbeitsrecht / Night Work/ On-Call/ Pikettdie

@rightschampion - I feel for you.
I don't know what part of the world you're from and what kind of laws protect you there, but this is Switzerland and the least indispensable workers get "switzerlanded" every other day.
My acquired niece works at a petrol station, manages to earn appx. 2.7k/month, her holidays aren't paid for, neither her days off. So if she's home with the flu she doesn't get paid. Some of her shifts start a 5:30, some end at 22:30 and some times she works late + early shift back to back "just because". This specific company has petrol stations all over the canton, the CEO/owner is millionaire several times over and basically tells the Canton, the workers and the unions to go and screw themselves.
Such is the power of capital, as french economist Piketty is fond of saying.
And CH is The Land of Capital, and the Swiss like to have it this way.
Revolution still isn't showing up on the horizon.
So my 2 cents' is to find a good lawyer and see what kind of compensation you can lawfully get out of your employer and move on - knowing that your work certificate will certainly be ugly...

G'luck mate

Paul
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Old 18.05.2014, 16:54
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Re: Worker's Rights/ Employment Rights/ Arbeitsrecht / Night Work/ On-Call/ Pikettdie

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@rightschampion - I feel for you.
I don't know what part of the world you're from and what kind of laws protect you there, but this is Switzerland and the least indispensable workers get "switzerlanded" every other day.
My acquired niece works at a petrol station, manages to earn appx. 2.7k/month, her holidays aren't paid for, neither her days off. So if she's home with the flu she doesn't get paid. Some of her shifts start a 5:30, some end at 22:30 and some times she works late + early shift back to back "just because". This specific company has petrol stations all over the canton, the CEO/owner is millionaire several times over and basically tells the Canton, the workers and the unions to go and screw themselves.
Such is the power of capital, as french economist Piketty is fond of saying.
And CH is The Land of Capital, and the Swiss like to have it this way.
Revolution still isn't showing up on the horizon.
So my 2 cents' is to find a good lawyer and see what kind of compensation you can lawfully get out of your employer and move on - knowing that your work certificate will certainly be ugly...

G'luck mate

Paul
As ive already stated, I'm not looking for sympathy or advice.

Sorry to hear about your niece - However, nothing you mentioned in your post is illegal, given the provided information. If she checks her contract and it is illegal, she should contact the relevant authorities. If you think the canton doesn't want the taxes it is owed, well...that'd be a first.

Again, please leave irrelevant comments off of this thread. They only make it harder for anyone in the future to find relevant info about worker's rights.
Thanks again
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Old 18.05.2014, 17:07
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Re: Worker's Rights/ Employment Rights/ Arbeitsrecht / Night Work/ On-Call/ Pikettdie

Sorry, but OP you are really coming across as arrogant and know-it-all. You start a thread with a detailed account of how your employer is supposedly breaking all these laws and could be fined 540,000 Francs per person, but when members suggest you get out of there and take the legal stuff further you call the comments irrelevant.

What really is your goal here? You don't even take your own advice. Or am I missing something?
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Old 18.05.2014, 17:11
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Re: Worker's Rights/ Employment Rights/ Arbeitsrecht / Night Work/ On-Call/ Pikettdie

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Have you addressed their illegal behavior with your employer?
When did/will you file the legal complaint against your employer?
The employer is well aware of the illegal behavior - and deals with any complaints on a one-by-one basis. They don't necessarily make things legal, but offer what could be considered a bit of hush money. I am not playing this game, as I will not be complicit to the crime.

I am waiting to file the legal complaint until all of the facts are in. As such, I cannot share more information about my situation until all of the facts are in.

Again, this thread is not meant to be solely about my personal situation, but as a helpful source of info for anyone who is in similar circumstances. Is it strange that there is more accessible info on EF about brown sugar or maple syrup than worker's rights?
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Old 18.05.2014, 17:21
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Re: Worker's Rights/ Employment Rights/ Arbeitsrecht / Night Work/ On-Call/ Pikettdie

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If your pikett-regime is illegal, than you have the right to ask for compensation.
We do get compensation - just not "enough." And as you pointed out, there are certain regulations concerning working-hours/pikett/resting-hours.
For several years, there weren't any regulations (and no compensation) at all.

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If your contract is illegal, than the illegal sections are therefore invalid, and the your compensation/benefits must at minimum match the law. If you know it is illegal, and are afraid to ask your company to pay you legally, speak with the proper authorities. They will come and anonymously check the company's work contracts and hours, and will be forced to draw up new contracts and change the pikett-regime. As I stated, if they do not, they will personally be held accountable. After the new contracts are in place, you can file for compensation to cover what they have withheld from you, within a five year statute of limitations.

Why would you wait until next year?
As I said, small company, testing the willingness to self-exploitation...
Similarities to an abusive relationship....

It's not a bad place per-se. Projects are rather interesting (mostly). We don't have to clock hours. And if I have to see a doctor (or mind some other business), I don't have to ask half a day off (provided it doesn't really take half a day). I just have to check with the other members of the team so that the office isn't empty and nobody answers the phone.

Why haven't you moved on?
;-)

That said, this reminds me to ask when the regulations are going to change.
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  #20  
Old 18.05.2014, 17:26
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Re: Worker's Rights/ Employment Rights/ Arbeitsrecht / Night Work/ On-Call/ Pikettdie

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Sorry, but OP you are really coming across as arrogant and know-it-all. You start a thread with a detailed account of how your employer is supposedly breaking all these laws and could be fined 540,000 Francs per person, but when members suggest you get out of there and take the legal stuff further you call the comments irrelevant.

What really is your goal here? You don't even take your own advice. Or am I missing something?
I've repeatedly stated my goal - creating a source of information for everyone to use in regards to knowing their rights. I'm sorry if that is hard for you to understand. In a sense, my goal has already been realized - anyone searching for this info in English on the web will find this site. But this thread has the potential to contain much more relevant info than it already does...

How is it that you think I have not taken my own advice? One member mentioned getting a lawyer - good advice indeed. I would thank them, but i'm not given a thank you button on my screen for some reason. Sorry about not using the multiple quotes function - I'll have to figure out how to do that.

The irrelevant comments I am speaking of those comments which do not relate to any specific circumstances of worker's rights violations, or do not share any present or past experiences when dealing with worker's rights. Basically - opinions like yours.
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employment rights, night work, on call, pikettdienst, worker's rights




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