On 9 February 2014, voters in Switzerland approved a new constitutional provision (art. 121a Federal Constitution; Cst) by a narrow majority of just over 50 percent. The initiative demanded that Switzerland control immigration autonomously and set quotas and upper limits for foreigners. The vote was the result of years of political pressure, particularly in regions experiencing high migration inflows. Overall, Switzerland takes in up to 100,000 immigrants annually, mostly from European Union (EU) countries.
The Swiss Parliament thus found itself in the difficult position of having to implement an initiative intended to limit the free movement of persons (including those from EU Member States) without infringing the Bilateral Agreement on the Free Movement of Persons with the EU. After nearly three years of speculation and uncertainty, the Swiss Parliament approved on Friday, 16 December 2016 the modifications to the Federal Act on Foreign Nationals (Foreign Nationals Act; FNA), thereby implementing art. 121a Cst.
Implementation of the legal changes in the ordinances
On 8 December 2017, the Federal Council decided how the amended FNA would be implemented in the related ordinances and, in particular, in the Ordinance on the Recruitment and Hiring of Services. The new articles of the FNA and the Ordinance on the Recruitment and Hiring of Services create the obligation for employers to communicate job vacancies in certain categories of profession to the designated public authority. These professional categories are those in which the Switzerland-wide unemployment rate reaches a certain threshold.
- As of 1 July 2018, the threshold will be set at an unemployment rate of 8%.
- As of 1 January 2020, the threshold will be set at an unemployment rate of 5%.
In professional categories where the unemployment rate is equal to or higher than the threshold, employers will have a legal obligation to notify the designated public authority of any job vacancies. For the first five days following each notification of a job vacancy, these job offers will be available solely to the workforce already registered as unemployed. Only after five days have passed will employers be allowed to publish the vacancy in the media of their choice. Thus, registered unemployed workers will benefit from a head start for their applications.
Which employers are affected?
In its explanatory report of November 2017, the State Secretariat for Economic Affairs (SECO) provided a list of professional categories in which the Switzerland-wide unemployment rate is equal to or higher than 5%, based on 2016 statistics (and thus subject to change). Professionals in the construction industry are well represented on this list; salespersons, specialists in marketing, micro-technology and electronic engineers as well as mechanical engineers also appear on it. The list of professions affected by the implementation of the threshold will be published with up-to-date statistical data before the entry into force of the duty of notification described above.
Are there any exceptions to this duty of notification?
It is not mandatory to communicate a job vacancy to the authority in the following cases:
- The job opening is filled by a worker who has already been employed by the same firm for at least six months (also applicable to interns but not to labour leasing companies).
- Apprentices who are offered a job position after completing their apprenticeship.
- Short-term employment lasting up to 14 days (e.g. in the event of an urgent resource need while an employee is temporarily unable to work due to an accident or other similar reason).
- The job position is filled by a close family member of the firm’s owner (in particular, cases of inheritance).
The changes in the FNA and its ordinances should ensure a better use of the local workforce, as intended by the initiative. Specifically, this is implemented by giving a head start to unemployed workers who are already registered at the designated public authority.
The above-outlined changes imply that companies will have to monitor the list of professions issued by the SECO on a regular basis to check whether, when and for which professions the threshold of 5% is met (or exceeded), thus requiring them to notify the designated public authority of their job vacancies. The internal or external recruitment teams of companies will need to implement processes that allow them to publish vacancies efficiently in order to avoid disruption of the day-to-day business activities. PwC is working on such processes to address its own recruiting needs and we are happy to share our experience and best practices with our clients.
PwC will continue to closely monitor the immigration legal landscape in Switzerland, at the federal and cantonal levels. Please don’t hesitate to reach out to your usual PwC contact for further details.
Director Immigration Services
+41 58 792 91 16