Will I have to work on 1 August?
Will I have to work on 1 August?
"I work as a secretary for a company in Geneva that mainly operates in the French market. My employer has told me that I have to work on 1 August 2013 because it's not a public holiday in France. Is this legal?"
Jeanne, Perly
If your employer is a company based in Switzerland, national legislation applies to it, regardless of the market in which it operates. It must therefore comply with the Law on Labour in Industry, Craft Trades and Commerce (LTr) for its employees who are subject to it, which excludes in particular those in senior management positions.
The LTr enshrines the principle that it is forbidden to work on Sundays; the bank holidays is treated as a Sunday.
However, it is possible to apply for authorisation to derogate from this ban. Under a number of restrictive conditions, the authorities may grant temporary, periodic or even regular exemptions.
In the case of a temporary derogation for a particular day, the employer must establish the existence of an urgent need, which is defined as the occurrence of unforeseen additional work that cannot be deferred or carried out in advance, the need to carry out work during the night or on Sundays for security reasons, or work of limited duration in connection with company events or demonstrations.
The simple fact that 1 August is not a public holiday in France does not appear to be sufficient grounds for obtaining authorisation to work on the Swiss bank holidays. For example, the Federal Court has ruled that there is no justification for derogating from the ban on working on Good Friday on the sole grounds that it is not a holiday abroad, even if the company is particularly busy on that particular date.
In any case, even if such a derogation is granted, the employee may only be assigned to work on a Sunday - or on a day treated as a Sunday - if he or she agrees to do so (art. 19 para. 5 LTr), which may nevertheless prove advantageous for the employee, since in the event of a temporary derogation the employer will have to pay the employee an additional 50% in wages.
