CONVINUS Global Mobility
CONVINUS Global Mobility Insights - Frühling / Spring 2025The spectre of international employee deploymentAuthor: Dr. iur. Roger Hischier, Certified Specialist SAV Labour LawThe unknown is always scary. And from a legal perspective alone, there is usuallymore than enough of this in the case of international employee assignments,because when deploying employees abroad, we have to deal with at least twodifferent legal systems that need to be observed: namely the legal system of thecountry from which an employee is sent abroad for a work assignment, and thenthe legal system of the country or countries in which the employee's place ofassignment is located. If the employee has a different nationality and also lives ina third country, these legal systems must also be observed.Autonomous legislationEach state determines its own legal system autonomously. Each state alsoassumes that its legal system is the best - as it is the most familiar - and thereforealways wants to see it applied. Particularly about public law, this idea is thereforealso consistently implemented by means of a clearly defined mandatory intentionto apply the law and a separate jurisdiction.A certain softening of this principle is achieved through international treaties inwhich the contracting states coordinate the scope of application of their legalsystems in cross-border situations and, depending on the case, regulate themdifferently from national legislation.Relevant areas of lawIn the case of an international employee assignment, the provisions of thefollowing legal areas are of particular importance:1) Residence and work permit law2) Tax law3) Social security law4) Labour law46
CONVINUS Global Mobility Insights - Frühling / Spring 2025Of these four areas of law , the first three are part of public law and are thereforegenerally not subject to party autonomy. Each state is obliged to determine whichnationals may reside and work on its territory and under what conditions. In therelationship between the EU states and Switzerland, there is an internationaltreaty in this area in the form of the Agreement on the Free Movement of Persons,which contains deviations from the national legal systems and guarantees equalrights between the nationals of the contracting states.The Agreement on the Free Movement of Persons then also coordinates socialinsurance for the aforementioned nationals - also based on the principle of equaltreatment . Without a corresponding treaty, social insurance is also one of theareas of law that each state determines autonomously, particularly regarding theobligation to pay contributions. This in turn can lead to a double burden in thecase of international employee assignments, as an employee is subject to socialinsurance in both the country from which he or she is sent abroad and in thecountry of assignment and is therefore liable to pay contributions in bothcountries. The same applies to tax law.However, Switzerland has concluded various double taxation agreementsworldwide to avoid double taxation. In the area of labour law, a distinction isregularly made between public and individual labour law. The first group includeslabour law standards, which covers working time, occupational safety and healthregulations. These are mandatory at the place of work and compliance with themis monitored by the authorities and non-compliance is penalised. In Switzerland,these provisions are governed by the Labour Act and the Accident Insurance Act orthe corresponding ordinances. Even in the area of individual labour law, there isno unrestricted freedom of contract; instead, all countries regard the employee asa party to the contract requiring special protection from the employer, and thisidea of protection is implemented by means of mandatory provisions that may notbe amended to the disadvantage of the employee. Employees are also generallytreated favourably in procedural terms, as they are guaranteed simplified andcost-free court proceedings. The question of which court has jurisdiction in anemployment relationship with points of contact with several countries and whichlaw it applies can be found in the private international law of each country. Thereare also international treaties in this area that regulate these issues between thecontracting states.47
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