The contractual provisions specific to enterprises and workers are set out in individual contracts of employment. The basic principle is that freedom of contract applies provided that legal requirements and the provisions of any relevant collective labour contracts are observed. As a general rule, the parties need only record any arrangements which are not included in the relevant law (or an applicable collective contract) or in which its provisions are varied.
Article 319 of the Code of Obligations (CO) describes the individual contract of employment as follows:
- By the individual contract of employment, the worker undertakes, for a specified or unspecified period, to work in the service of the employer and the employer to pay remuneration fixed in accordance with the time worked or work supplied (piecework).
- A contract whereby a worker undertakes to work regularly in the service of the employer by the hour, by the half-day or by the day (part-time work) shall also be deemed to be an individual contract of employment.
From the point of view of the law, the contract of employment need not assume a particular form. A contract of employment can therefore also be made orally. For practical purposes, though, contracts of employment should preferably be concluded in writing. However, written form may be stipulated in a collective labour contract and is legally required for certain forms of contract (e.g. apprenticeship contracts or temporary work contracts).
Legal obligations of workers
(Articles 321-321e CO):
- Personal performance of work
- Exercise of due care and loyalty
- Rendering account and yielding up to the employer
- Overtime
- Observance of general directives and instructions
- Liability for damage caused to the employer intentionally or by negligence
Some of the employer's legal obligations
(Articles 322-330a CO):
- Remuneration (nature and amount)
- Payment of remuneration (timing)
- Remuneration in case of inability to work
- Working instruments, materials and expenses
- Protection of the workers' personality
- Weekly free time, holidays and time off for out-of-school activities for young people
- Other obligations: certificate, safety
Other important elements of a contract of employment:
- Probationary period not to exceed three months
- Contract of employment not to include immoral or illegal tasks
- Period of notice (see section “End of employment”)
The collective labour contract (CCT) is a written agreement concluded between one or more employers or their representatives and the
workers' associations (trades unions). It contains provisions on the labour relations between employer and employee and provisions applicable to its parties. A collective labour contract must be observed where employee and employer belong to an association or trade union signatory to it or where its applicability has been otherwise agreed. If it has
been declared generally applicable by the competent authority, it is applied to the entire sector concerned regardless of membership of an association or trade union. If the collective labour contract is required to be observed, it is valid immediately. Unless otherwise provided in the collective labour contract, only provisions more favourable to the worker may subsequently be added to individual contracts of employment.
The standard contract of employment, contrary to what its name suggests, is not a contract but a decision issued by the competent authority. The standard contract of employment lays down conditions as to the conclusion, subject-matter and end of various types of contracts of employment.
At Federal level, the standard contract of employment for medical assistants is a typical example, and at cantonal level those for agricultural labourers and domestic workers. The provisions of a standard contract of employment apply only if no other arrangement has been agreed in the individual contract of employment.
Source: European Union
© European Communities, 1995-2006
Reproduction is authorised.
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