Full-time job and GmbH

Finance, Taxes, Banking, Insurance and Retirement
1
Hi,

Right now I have a full-time job. I want to open my GmbH. I will be its president but I won't hire myself (for now). As far as I understand this should not colide with my current job's contract (from a legal point of view) and should be ok according to the Swiss labour law. Without the job contract with my company, I can act on its behalf as the president and perform all duties. Is my understanding correct?

Best regards,

Adam

2

With the info given, maybe yes, maybe no, maybe maybe

3
I think my question is quite clear: can I work as a president of my GmbH without having the job contract and it won't be seen as an extra job?

Best regards,

Adam

4
If your GmBH is in the same field as your full-time job, there could be a conflict of interest even if you don't have a contract as an employee. What does your contract with your current employer say?

5
Basically that I cannot work anywhere else. My future company wouldn't compete with my current employer so there's no conflict of interest. So I thought that I could become the president of my company and I wouldn't sign a new job contract. That should not violate my full-time job contract and still I should enable me to work on behalf of my company. The other question is what Steueramt would say if my company would have some income without employees.

It doesn't answer my question. What if I have only one job and I'm also a president of GmbH (without a job contract).

6
You're still working on behalf of the GmBH even if you don't have a contract. But it seems you know the answer you want to hear and we're not giving it, so good luck and let us know how it goes.

7
If I knew the answer, I wouldn't ask the question, right?

8
Ask your employer. I'm fairly sure they won't say "Oh yes, go right ahead."

9
You mentioned that even if I wouldn't sign contract with my GmbH, I would work on its behalf. How would it be interpreted by Swiss law, as full-time job?

10
Ask your employer, they will probably see it as a non recreational activity which demands enough of your attention that they aren't getting 100% of it.

11
The only people who have an actual right to establish a business are:

- Swiss citizens

- C Permit holders

- EU citizens

Beyond that you can expect to require permission in most cases at a minimum from the company that sponsored your permit.

12
My contract forbids having another contract. It says nothing about having and/or being a president of a company. Right now I have no idea how much time my company would consume.

I have EU/EFTA B permit so I'm good.

13
Some employment contracts specify you must seek permission if you wish to become a director of a company. If your employer believes that their contract clause covers company officer positions, then if they find out, it could get sticky for you.

The fact is you will be working for your GmbH, even if you don't have a contract. (I have no work contract with my GmbH, but I definitely work for it). This may well cause a non-written contract to spring into existence (I am not a lawyer). Best to be upfront and let them know your plans and ask if they have any objections.

I know a couple of employees in the IT department of a multinational here who set up their own company, selling software. They even sold the software to their employer. The first thing they did though was ask permission - it just needed their managers' sign-offs.

I am the managing director of my GmbH. My director duties take about half an hour a year. What do you think your "presidential" duties will ential.

14
Thank you for the first, real answer.

Do you have some kind of contract declaring you as a director or you are just executing duties because you are the owner? Thing is that a written contract specifies duties and an amount of hours but without it? As you wrote, duties can take one hour a year.

15
You can claim the technicality of not having a contract with the GMBH in your defense if your employer finds out. They may then find some other pretense to let you go.

The simple solution is to go to your employer and lay out what you are planning to do, and ask them if they object.

Most people start a GMBH with the aim of turning a profit, this generally takes time and effort. Your employer will be concerned if there is a conflict of interest, or a (potential) demand on your time and energy.

If you are working in IT, and plan to start a GMBH so that your OH can start a landscaping firm they may well say "fine". If, OTOH, your aim is to develop or market a software package for landscapers, they may see things quite differently.

16
In the case that you would start the Gmbh with the objective to make a revenue you would certainly put time in to it which will be seen as work. Putting no salary cost against your revenue doesn't make sense either.

In the case the Gmbh is just to keep an asset in like real estate you have or some financial product (for some reason I can no not think off). You may get away with it with just declaring that you have it at your employer.

So in answer to your question. Yes you may be the Director of that Gmbh and give yourself a freelancer contract that will take care of your expenses for executing the job. So thats not a salary but reimbursing an expense (train ticket, postage, etc)

Who will do your accounting?

17
Thanks for replies.

It won't be a permanent situation. I'm looking for a legal way of starting my own business and still having my primary work at the same time. As soon as my company creates a promise of a revenue I quit my current job.

18
I inquired about this recently. I'm not sure about the advice here regarding "contact your employer for clarification about conflict of interest". You're giving them an extremely easy way to just say "no". It all sounds a bit knee-jerky "be safe".

In the company I work many people have started companies exactly within our discipline, however you follow some simple rules to make sure your free time does not create any problems:

1) 100% complete separation between your current job and your own company. This should be extreme enough to not check+respond to emails during your working hours at your company. If they can prove (with someone for example emailing you an innocent question, which you respond to while on the toilet) you are working while operating your own business, you will cause problems for yourself. You're at one job, work one job. Leave the office, do what you like.

2) 100% complete separation between resources. Where I work, if you use company equipment to work on your own work/hobbies, it de facto applies to the company I work for. That means if I am on my work laptop at home, and I'm just doodling around and prototyping some thoughts using software on that laptop, my employer owns that work. If I purchase a separate laptop for myself, then all good.

3) 100% complete separation between contacts/connections. No, it's not OK on a (day job) business lunch to mention in passing you're working on product A to a distributor of A, and "only signing the papers after hours". Split it up. You begin to live two professional worlds, one at the day job, one at the GmbH.

You will require a Swiss resident to sign the papers starting the GmbH, but you can use various services for that if you want to pay, or ask a Swiss friend nicely. https://secure.startups.ch/ is an example of a service (first google hit, I'm not endorsing anyone).

You can create a plethora of problems by asking for permission first, however you can create problems by going ahead as well. If you ask for permission and there is any perceived difference in the output of your job, your employer may get snarky and say "well hey, it seems like your two jobs are causing an impact". Employers are people, and subject to all the benefits and faults of human beings.

Review your work contract. If in doubt, ask legal counsel to review the contract. You do *not* have to run everything by your company (unless in the sad case you signed a contract stating so). They don't own your life in all work contracts I've seen.

Good luck, start the business, have fun.

19
I thought that the separation of both jobs is pretty obvious.

What do you mean by "you will require a Swiss resident"? If I have EU permit B then I'm a Swiss resident, right?

20
I have no contract. I execute my managing duties because I am the managing director. Shareholders (owners) don't really have any duties.