If you follow posts on social media, you will probably read comments saying that when engaging new workers, employers in Switzerland prioritise Swiss nationals over foreigners.
Is this really true and, if so, is this practice legal?
It is a fact that employers in Switzerland must comply with certain rules and follow an established hiring hierarchy which, depending on your nationality, may appear discriminatory at first glance.
Swiss first — but not only
When choosing among equally qualified candidates from various countries, employers must judge Swiss nationals on an equal footing with Switzerland-based foreigners and people from the EU and EFTA (Norway, Iceland, and Liechtenstein) states.
They may not even consider applicants from third countries unless no suitable candidate can be found from the ‘priority’ pool of Swiss and/or EU and EFTA candidates.
To get a clear — and accurate — view of these hiring policies, The Local contacted the State Secretariat for Migration (SEM), an authority on statuary provisions relating to foreigners.
Two laws
According to SEM spokesperson Samuel Wyss, there are two separate pieces of legislation that lay ground for hiring foreign employees — and the rights accorded to them vis-à-vis local workforce.
One is the Free Movement of Persons Agreement (AFMP) that Switzerland has with the European Union.
This treaty contains the ‘non-discrimination’ rule, stating that EU workers must have “the right to equal treatment with nationals with regard to access to economic activity, as well as living, employment and working conditions.”
Therefore, under the terms of this agreement “an EU/EFTA employee may not be treated differently than a Swiss employee on the basis of nationality, including remuneration. dismissal, and other working conditions,” Wyss said.
However, even though it may be implied by the general non-discrimination clause, the AFMP doesn’t specifically say that workers from the European Union must benefit from the same hiring rights as their Swiss counterparts.
Local legislation
It is, in fact, a Swiss law, the Foreign Nationals and Integration Act (FNIA) that establishes this precedence, Wyss pointed out.
It states that “domestic workers or nationals of countries with which a free movement agreement has been concluded” have the priority for Swiss jobs. (Note that 'a free movement agreement' was also concluded with EFTA, so citizens of Norway, Iceland, and Liechtenstein benefit from the same priority).
The “domestic workers” designation includes Swiss nationals, as well as B and C permit holders.
So according to the FNIA, EU and EFTA nationals have the same access to jobs as Swiss citizens.
Does this mean employers can’t favour Swiss candidates over the ones from the EU/EFTA?
Actually, they can.
That’s because the so-called ‘freedom of contract’ — the process under which employers can decide on certain matters by themselves — gives companies some leeway, without actually breaking the law.
“As long as AFMP provisions are complied with, an employer in Switzerland is free to decide whether to hire a national or an EU/EFTA employee,” Wyss said.
And a study carried out by the Employment Observatory of the University of Geneva confirmed that a number of employers do just that.
"The behaviour of companies shows that [when hiring] they are taking local candidates into greater consideration," said Professor Yves Flückiger, who led the study.
"If Swiss companies hire foreign workers, it is because regional workforce does not match their specifications."
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