Overtime and overtime

The Law

The Code of Obligations provide the following in Art. 321c OR:

If it becomes necessary to perform overtime work in relation to the amount of work agreed or customary or determined by normal employment contract or collective employment agreement, the employee is obliged to do so to the extent that he is able to do so and it can be reasonably expected of him in good faith.

In agreement with the employee, the employer may, within a reasonable period of time, compensate the overtime work by free time of at least the same duration.

If the overtime work is not compensated by free time and unless otherwise agreed in writing or stipulated in a standard or collective agreement, the employer shall pay wages for the overtime work. This compensation should be calculated on the basis of the normal wage, and should be increased by a bonus of at least one quarter.

Art. 321c, para. 1. is listed as a mandatory provision in the Code of Obligations, which means that it may not be deviated from to the disadvantage of either the employer or the employee. It should be noted that the Code of Obligations only regulates the provisions regarding overtime work.

Maximum working hours

Overtime work is defined as working time that exceeds the agreed duration but is no longer than the statutory maximum weekly working time.

Article 13 of Regulation I of the Labour Code provides that working time is the time during which the employee must remain at the employer's disposal. In this context, it should be stressed that the journey to and from work is not considered working time. Only the time of presence and breaks during which the employee is prohibited from leaving the workplace count as working time. A workplace is any place in or outside the enterprise where the employee is required to be present in order to carry out the work assigned to him/her. According to the Labour Code, the maximum weekly working time for office staff and technical staff is 45 hours (for 100% workload). According to Art. 9, 12 and 13 of the Labour Code, the weekly working hours may be exceeded in exceptional cases, in particular due to the urgency of the work or in the event of an extraordinary workload. In a calendar year, overtime may not exceed 170 hours. Overtime of more than two hours per day is not permitted, except on non-working days and in cases of extreme emergency.

Graphical example

Office Personnel
100% workload I 40-hour week
In week X, the staff works 48 hours:

Compensation

According to the Swiss Code of Obligations, the employee is obliged to work necessary overtime to the extent that he is able to do so and can be expected to do so in good faith. In this regard, there is often uncertainty regarding the compensation for overtime. In agreement with the employee, the employer may compensate overtime work within a reasonable period of time by free time of at least the same duration. If this does not happen and unless otherwise agreed in writing, the employer must pay wages for the overtime work which are based on the normal wage plus a bonus of at least one quarter. If, however, the statutory maximum weekly working time of 45 hours is exceeded, Art. 13 of the Labour Code provides for the payment of a wage supplement of at least 25 per cent, unless the employee agrees to compensation by granting corresponding time off, but without a supplement, unless such a supplement is contractually agreed. However, this compensation by free time must be paid within 14 weeks, unless the employer and employee agree on a longer period, which, however, may not exceed 12 months according to Art. 40 of Ordinance I of the Labour Code.

The exception

Employees in senior management positions are not subject to the Labour Code. However, this does not mean that overtime worked by senior executives is not specifically compensated. The provisions of the Code of Obligations, which regulate the payment and compensation of overtime, do not distinguish between ordinary employees and their superiors. "Anyone who works overtime in excess of the contractually agreed workload shall work overtime" is the principle from the provisions of the Code of Obligations and applies to all employees, regardless of their position in the company. Therefore, overtime work by management is not always included in their wages. The Swiss Federal Supreme Court has ruled (BGE 4C.96/1992) that if a fixed working time has been contractually agreed for the managerial employee, then the overtime is to be paid, subject to any deviating agreements between the parties. Only if neither a fixed working time nor an overtime compensation has been expressly agreed upon, the managerial employee owes overtime without compensation. In this case, it is assumed that the overtime has already been compensated by the higher salary.

Our recommendation

Our recommendation is to keep records of the overtime worked in the company and to check and record the hours worked on a monthly basis. Furthermore, it is advantageous to regulate the handling of overtime precisely in the contract.