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I'm trying to find out if a new policy implemented by my employer is legal. I'm employed on an hourly basis, no minimum amount of work, with shift plans made yearly. Now they started cancelling some work less than 3 hours in advance depending on business needs (which make sense, but aren't my problem).

I can't track down any specific legislation, I found SR 220 Art. 324 and SR 822.111 Art. 69 (official commentary/explanations by SECO) which both seem to support me, but aren't specific enough to be of any use to me.

Switzerland, Canton of Zurich.

Nobody
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    I think the wording of art. 69 OLT 1 is quite specific already. SECO also publishes interpretative guides. https://www.seco.admin.ch/dam/seco/fr/dokumente/Arbeit/Arbeitsbedingungen/Arbeitsgesetz%20und%20Verordnungen/Wegleitungen/Wegleitungen%201/ArGV1_art69.pdf.download.pdf/ArGV1_art69_fr.pdf – xngtng Aug 30 '21 at 23:06
  • @xngtng Thanks for that link, that was useful. Maybe it would be too much to ask to find something more specific. But if I'm going to confront my (somewhat capricious) employer about something which is not really important to me (it's not like I can't pay my rent because of this) then I will need some really strong legal sources. – Nobody Aug 31 '21 at 09:59

1 Answers1

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First Part

OR 324 is quite the right article for this. If the employer doesn't want that you work (because he has nothing to do for you) it's his problem, not yours. He still has to pay if you are there and ready to do work. This is for instance also mentioned in this article.

The meaning of this is obvious if having a contract with a fixed number of work hours per day/month/year.

Second part

Prove that you have a fixed work contract.

If the shift plans are made in advance you have a proof that you have a certain number of hours to work (and thus an expected income). If I interpret this here correctly, this is "echte Arbeit auf Abruf" (true work on request), because if your employer wants your work, you have to be there according to the shift plan, as opposed to your employer asking "who is ready to work tonight?".

So your employer must pay you the hours agreed on in the shift plan, regardless of whether he has work for you or not (but you must explicitly tell him that you are willing to take work).

Third part

Can the employer change the shift plan, and to what extent?

The employer must announce changes to work hours as soon as possible, and changes on short notice are only acceptable in emergency cases. A reduction in work hours due to not enough work shall not reduce the employee's salary. The business risk is entirely with the employer and he must not shift that responsibility to his employees. (That was common in the late 19th and early 20th century, with all the officially self-employed home workers in the textile industry). Here is a federal court decision that affirms this (BGE 125 III 65 S. 66).

PMF
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    The thing is, the employer must be allowed to change the shift plan, let's say a month in advance, and cancel my work without paying me, right? But 3 hours in advance, it's too late. So where is the boundary, where does it say how much time in advance I get? – Nobody Aug 26 '21 at 20:01
  • Yes, he may change the shift plan to some extent, but this does not imply that he can also change the work hours at will. https://www.20min.ch/story/darf-der-chef-den-schichtplan-aendern-437239038131 may be relevant for your question or https://www.tagesanzeiger.ch/wirtschaft/sozial-und-sicher/die-festlegung-der-arbeitszeit-ist-chefsache/story/13793839 It seems to be agreed that changes have to be announced at least two weeks in advance, unless the change is due to some event the employer is surprised about himself (i.e. some kind of emergency). – PMF Aug 26 '21 at 20:11
  • The second one seems to be relevant, but they don't cite a law or regulation or case. But that's exactly what I'm looking for. Another problem with many sources like the first one is that there are often Gesamtarbeitsverträge so if they have an example concering restaurant workers or whatever, it might not apply to me. – Nobody Aug 26 '21 at 20:33
  • Papers unfortunately never quote their sources . I'll try to find some evidence about it. – PMF Aug 27 '21 at 12:21
  • Yeah, it's really a shame about the lack of sources. Would greatly appreciate it if you can dig something up, otherwise maybe I'll find something elsewhere and keep you posted. – Nobody Aug 27 '21 at 13:41