Regulations pertaining to persons recruited locally by foreign States for employment in their permanent mission
Definition
Employees recruited locally (local employees) are not part of the transferable career personnel of the sending State (foreign State). There are two distinct categories :
- Persons of Swiss nationality who are holders of a "R" legitimation card and persons who are permanently resident in Switzerland, i.e. persons with a temporary or permanent residence permit (B or C work permits),
- Persons of foreign nationality who are not permanently resident in Switzerland and are holders of an "E" legitimation card.
Recruitment procedures
The recruitment procedure for employees hired locally is defined in the guidelines regarding the issuance of FDFA legitimation cards to the staff members of the permanent missions of 15 January 2016 (Manual: FDFA legitimation cards).
Contractual conditions
A permanent mission (such as an embassy or consulate) has no legal personality. It is merely an organ of the foreign State that it represents. A work contract signed by a permanent mission in the name of the State it represents is thus binding on that State and not on the mission as such. All litigation will therefore be directed against the foreign State through the diplomatic channel (depending on the election of residence (domicile)) (see Information note on the immunity of a foreign State).
Employees recruited locally are subject to Swiss labour Law (cf. Swiss Code of Obligations, Section two: various types of contracts - 10th heading of the work contract, Articles 319 to 343), unless the employer and the employee choose another system of law (law of the sending State). In the latter case, the choice of a different legal system must be expressly stated in the written work contract. In the absence of a written work contract, Swiss law applies.
According to Swiss law, employee remuneration is generally a matter of contractual freedom. The wage, outside the canton of Geneva which has introduced a minimum wage in Novembre 2020 (see information note), may thus be freely negotiated between the parties as long as there is a written work contract signed by the two parties, and on condition that there is no obvious lack of proportion between the work to be undertaken and the rate of pay. Any such disproportion would be in violation of article 21, par. 1 of the Swiss Code of Obligations and the wage clause could be declared null and void by a Swiss court. In the event of a dispute, if the parties have not stipulated the wages in writing and a collective agreement exists, the court will take into consideration the amount of wages determined by the collective agreement.
Work contract
Swiss law does not mandate a written work contract. In the absence of a written contract, however, an labour tribunal that has to make a ruling will consider the provisions of the law (Swiss Code of Obligations - CO (Section two: various types of contracts - 10th heading of the work contract, articles 319 to 343) and the federal Law on employment in trade and industry (LTr) in rendering its judgement.
The parties are strongly encouraged to conclude a work contract in writing on the basis of the provisions of the CO and the LTr. The parties are free to stipulate that the work contract is governed by the CO and the LTr, and in the event of a dispute, these will be taken as legal references. If the parties decide to formulate a detailed work contract, the following aspects must be included :
- Position and description of duties
- Date of assuming the position
- Period of probation (cf. article 335b CO)
- Duration of contract (limited: cf. article 334 CO, unlimited: cf. article 335 CO)
- Gross monthly wages (cf. articles 322, 322d, 323 CO).
- Insurance (cf. Information note on this subject).
- Vacation and days off work (cf. article 329 and 329a CO), public holidays (cf. article 20a LTr and Information note on this subject)
- Duration of work (cf. article 9 LTr)
- Supplementary hours (cf. article 321c CO)
- Termination of work relationship (cf. articles 334, 335, 225a, 335b, 335c, 336, 336a, 336b, 336c, 337, 337a, 337b, 337c, 337d CO)
Wage conditions (from 01.01.2024)
You can consult the online salary calculator provided by the "Observatoire genevois du marché du travail (OGMT)".
Source: Cantonal office of labour relations and supervision, Geneva (OCIRT)
