Overtime: Your Rights in Switzerland

Overtime vs Extra Work

Overtime (art. 321c CO): hours beyond contractual duration but within the Employment Act (EA) maximum.

Extra work (art. 12 EA): hours beyond the EA maximum (45 hours/week for industrial/office workers, 50 hours for others - art. 9 para. 1 EA).

Example: an office worker with a 42-hour contract works 47 hours. Hours 43-45 are overtime (CO). Hours 46-47 are extra work (EA).

Overtime (art. 321c CO)

The employee must work overtime when circumstances require it (art. 321c para. 1 CO). Compensation: time off in lieu with employee agreement, or payment with a 25% supplement (art. 321c para. 3 CO).

The supplement may be contractually waived in writing. Many contracts include "overtime included in salary." ATF 124 III 469: only valid if salary substantially exceeds the minimum and overtime remains reasonable.

Extra Work (art. 12-13 EA)

A 25% supplement is mandatory for industrial/office workers when extra work exceeds 60 hours per year (art. 13 para. 1 EA). This cannot be waived contractually (mandatory provision).

Alternatively, compensatory time off within 14 weeks (art. 13 para. 2 EA).

Maximum extra work: 170 hours/year (45-hour week) or 140 hours/year (50-hour week) - art. 12 para. 2 EA.

Proving Overtime

Burden lies with the employee (art. 8 CC): must prove actual work beyond contractual hours, that hours were necessary/ordered, and that the employer knew and tolerated them. ATF 129 III 171: merely staying at the office is insufficient.

Time Recording

Art. 46 EA and art. 73 ArGV 1 require the employer to maintain a working time register. This is essential evidence in disputes.