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RS 836.21 Family Allowances (OAFam) Order of 31 October 2007

Original Language Title: RS 836.21 Ordonnance du 31 octobre 2007 sur les allocations familiales (OAFam)

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836.21

Family Allowance Ordinance

(OAFam)

On 31 October 2007 (State 1 Er January 2013)

The Swiss Federal Council,

Having regard to art. 4, para. 3, 13, para. 4, 21 B, Al. 1, 21 E And 27, para. 1, of the Act of 24 March 2006 on Family Allowances (LAFam) 1 , 2

Stops:

Section 1 General provisions

Art. 1 Vocational training allowance

(art. 3, para. 1, let. B, LAFam)

1 A right to a vocational training allowance exists for children engaged in training within the meaning of s. 25, para. 5, of the Federal Act of 20 December 1946 on the old-age and survivors insurance (LAVS) 1 .

2 ... 2


1 RS 831.10
2 Repealed by c. I of the O of 24 Sep. 2010, with effect from 1 Er Jan 2011 ( RO 2010 4591 ).

Art. 2 Childbirth allowance

(art. 3, para. 2 and 3, LAFam)

1 A right to a birth allowance exists where the cantonal family allowance scheme provides for a birth allowance.

2 Where only one person is entitled to the birth allowance, the person is paid, even if another person has a priority entitlement to family allowances for the same child.

3 The birth allowance is paid:

A.
Whether a right to family allowances exists according to the LAFam; and
B.
If the mother has had his or her residence or habitual residence within the meaning of s. 13 of the Federal Act of 6 October 2000 on the general part of the right of social insurance 1 In Switzerland during the nine months preceding the birth of the child; if the birth occurs before the end of the child's life, the required period of residence or habitual residence in Switzerland is reduced in accordance with art. 27 of the Regulation of 24 November 2004 on benefits for loss of gain 2 .

4 Where more than one person can claim a right to the birth allowance for the same child, the right to that benefit belongs to the person entitled to the child allowance for that child. If the second person's entitlement is higher, the latter is entitled to the payment of the difference.


Art. 3 Adoption Allocation

(art. 3, para. 2 and 3, LAFam)

1 A right to an adoption allowance exists where the cantonal family allowance scheme provides for an adoption allowance.

2 Where only one person is entitled to the adoption allowance, the adoption allowance is paid to him, even if another person has a priority entitlement to family allowances for the same child.

3 The adoption allowance is paid:

A.
Whether a right to family allowances exists according to the LAFam;
B.
Whether the authorization to receive a child under s. 11 A The order of 19 October 1977 regulating the placement of children for maintenance and adoption 1 Has been definitively issued; and
C.
Whether the child was actually received in Switzerland by the prospective adoptive parents.

4 Where more than one person can claim the right to the adoption allowance for the same child, the right to that benefit belongs to the person entitled to the child allowance for that child. If the adoption allowance of the second person is higher, the latter is entitled to the payment of the difference.


Art. 4 Children of the spouse of the legal person

(art. 4, para. 1, let. B, LAFam)

1 The children of the spouse of the beneficiary are entitled to the family allowance if they live most of the time in the home of the right person or have lived there until their majority.

2 Also considered as children of the spouse the children of the partner within the meaning of the law of 18 June 2004 on the partnership 1 .


Art. 5 Children Collected

(art. 4, al.1, let. C, LAFam)

The child shall be entitled to family allowances if the child is entitled to maintenance and education expenses in a sustainable manner for the purpose of art. 49, para. 1, of the Old Age and Survivors Insurance Regulations of October 31, 1947 1 .

Art. 6 Brothers, sisters and grandchildren; preponderant maintenance

(art. 4, para. 1, let. D, LAFam)

The person having the right to care for the child preponderantly:

A.
If the child lives in his or her home and the amount paid by third parties for the maintenance of the child does not exceed the maximum full orphan's pension; or
B.
If it contributes to the maintenance of the child who does not live in his or her home at least equal to the maximum orphan's full orphan's pension.
Art. 7 1 Children Abroad

(art. 4, para. 3, LAFam)

1 For children who are domiciled abroad, family allowances shall be paid only if provided for by an international convention.

1bis For children leaving Switzerland to attend training, it is assumed for five years at most that they retain their residence in Switzerland. This period shall begin at the earliest as soon as the child reaches the age of 16.

2 Employees compulsorily insured under the AVS in accordance with Art. 1 A , para. 1, let. C, or para. 3, let. A, LAVS 2 Or under an international convention are entitled to family allowances for children domiciled abroad even if no international convention provides for it.


1 New content according to the c. I of the O of 26 Oct. 2011, effective from 1 Er Jan 2012 ( RO 2011 4951 ).
2 RS 831.10

Art. 8 Children domiciled abroad; adjustment of amounts to purchasing power

(art. 4, para. 3, and 5, para. 3, LAFam)

1 For the adjustment of the amounts to the purchasing power, the following rates shall apply:

A.
Where the purchasing power of the country of domicile of the child rises to more than two thirds of the purchasing power in Switzerland, 100 % of the minimum legal amount is paid;
B.
Where the purchasing power of the country of domicile of the child is more than one third but, at most, two thirds of the purchasing power in Switzerland, two thirds of the minimum legal amount shall be paid;
C.
Where the purchasing power of the country of domicile of the child rises to one third or less of the purchasing power in Switzerland, one third of the legal minimum amount is paid.

2 The distribution of home countries is adapted at the same time as the minimum amounts of family allowances.

3 The assignment of a country to a group referred to in para. 1 is based on World Bank data in Washington (Purchasing Power Parities). The data as published by the World Bank three months before the entry into force of the LAFam or the adaptation of the minimum amounts under Art. 5, para. 3, LAFam. The Federal Office for Social Insurance (Office) publishes in the Guidelines a list of countries with their assignment to a group.

Section 2 Family allowance scheme for persons engaged in a gainful occupation 3

Art. Branches

(art. 12, para. 2, LAFam)

Establishments or facilities in which a secondary or tertiary activity is carried on for an indefinite period shall be considered as branches.

Art. 10 Duration of entitlement to allowances after expiry of the right to salary; coordination

(art. 13, para. 1, 2 and 4, LAFam)

1 If the employee is prevented from working for any of the reasons set out in s. 324 A , para. 1 and 3, of the code of obligations (CO) 1 , the family allowances are paid, from the beginning of the incapacity to work, during the current month and the following three months, even if the statutory right to pay has ended.

1bis If the employee takes leave without pay, family allowances shall be paid at the beginning of the leave, during the current month and the following three months. 2

1ter After a break in accordance with para. 1 or 1 Bis , the right to family allowances exists on the first day of the month of the resumption of work. 3

2 The right to family allowances remains even without a statutory right to pay:

A.
During maternity leave of up to 16 weeks;
B.
During a leave of absence for youth activities under s. 329 E , para. 1, CO.

3 If the employee dies, the family allowances are paid during the current month and the following three months.


1 RS 220
2 Introduced by ch. I of the O of 26 Oct. 2011, effective from 1 Er Jan 2012 ( RO 2011 4951 ).
3 Introduced by ch. I of the O of 26 Oct. 2011, effective from 1 Er Jan 2012 ( RO 2011 4951 ).

Art. 10 A 1 Duration of entitlement to allowances for self-employed persons

(art. 13, para. 2 Bis , LAFam)

1 The right to family allowances for self-employed is born on the first day of the month in which the independent activity begins and expires on the last day of the month in which the independent activity ceases.

2 As regards the right to family allowances for self-employed persons in the event of interruptions in the gainful occupation or death of the independent person, art. 10 shall apply mutatis mutandis.


1 Introduced by ch. I of the O of 26 Oct. 2011, effective from 1 Er Jan 2013 ( RO 2011 4951 ).

Art. 10 B 1 Determination of income in the case of several gainful activities

(art. 13, para. 3, LAFam)

If a person is employed with more than one employer or is employed at the same time as a self-employed person, the different income is added together to determine income.


1 Introduced by ch. I of the O of 26 Oct. 2011, effective from 1 Er Jan 2013 ( RO 2011 4951 ).

Art. 11 The competent family allowance compensation fund in the case of several gainful activities 1

(art. 13, para. 4, let. B, LAFam)

1 If a person is employed with several employers, the appropriate family allowance fund is that of the employer paying the highest salary.

1bis If a person is simultaneously engaged in self-employment and self-employment, the family allowance compensation fund of his employer shall be competent:

A.
The contract of employment has been concluded for more than six months or for an indefinite period; and
B.
The minimum income referred to in s. 13, para. 3, LAFam is reached as part of the contract of employment. 2

2 The Office shall issue directives on the designation of the competent family allowance compensation fund for persons engaged in a number of short-term or irregular dependent or independent activities. 3


1 New content according to the c. I of the O of 26 Oct. 2011, effective from 1 Er Jan 2013 ( RO 2011 4951 ).
2 Introduced by ch. I of the O of 26 Oct. 2011, effective from 1 Er Jan 2013 ( RO 2011 4951 ).
3 New content according to the c. I of the O of 26 Oct. 2011, effective from 1 Er Jan 2013 ( RO 2011 4951 ).

Art. 12 Compensating funds for family allowances

(art. 14 LAFam)

1 A compensation fund for family allowances of a single employer (caisse d' entreprise) cannot be recognised as a compensation fund for family allowances within the meaning of Art. 14, let. A, LAFam.

2 Compensation funds for family allowances within the meaning of Art. 14, let. C, LAFam shall announce itself to the competent authority of the canton in which they wish to be active.

Art. 13 Financing of compensation funds for family allowances

(art. 15, para. 1, let. B, and 3, LAFam)

1 The compensation funds for family allowances are financed by contributions, income and levies from the hedge reserve and payments from possible compensation Cantonal.

2 The fluctuation risk coverage reserve is adequate when it has reached a minimum of 20 % and a maximum of 100 % of the average annual expenditure on family allowances.

Art. 14 Use of wind-up surpluses

(art. 17, para. 2, let. E, LAFam)

Any surplus resulting from the merger or dissolution of compensation funds for family allowances within the meaning of s. 14, let. A or c, LAFam is used for family allowances.

Section 3 Fund for family allowances of the Federal Compensation Fund

Art. 15

1 The Federal Compensation Fund (CFC) administers a compensation fund for family allowances for the federal government, federal courts and federal institutions. There are also other institutions which are subject to the high level of supervision of the Confederation or which have close relations with the Confederation.

2 The EFA family allowance fund is a special fund within the meaning of s. 52 of the Finance Act of 7 October 2005 1 .

3 The Confederation shall make available to the Account for Family Allowances of the CFC the staff, premises and means of operation necessary for compensation. Employers are responsible for the indemnification of the Confederation and other administrative costs. The latter are also involved in the creation of a risk-hedging reserve.

4 The Federal Department of Finance may, in agreement with the Federal Department of the Interior and the Federal Department for Foreign Affairs, issue implementing provisions concerning, inter alia, the organization, membership in the funds, the Control of employers, contributions, administration fees, the creation of a fluctuation risk coverage reserve and the revision of the funds.


Section 4 Family allowance scheme for persons without gainful employment

Art. 16 Persons without gainful employment

(art. 19, para. 1, LAFam)

Not considered to be persons without gainful employment within the meaning of LAFam:

A.
Persons who have reached the ordinary age of retirement and receive an old-age pension from the OAS;
B. 1
Non-separated persons whose spouse receives an old-age pension from the OAS;
C.
Persons whose AVS contributions are considered to be paid within the meaning of s. 3, para. 3, WASHERS 2 ;
D. 3
Applicants for asylum, persons provisionally admitted, persons to be protected who are not holders of a residence permit and persons subject to a removal order who, pursuant to s. 82 of the Asylum Act of 26 June 1998 4 , are entitled to emergency assistance until their contributions have been determined in accordance with s. 14, para. 2 Bis LAVS.

1 New content according to the c. I of the O of 26 Oct. 2011, effective from 1 Er Jan 2013 ( RO 2011 4951 ).
2 RS 831.10
3 Introduced by c. I of O du 28 oct. 2009, effective since 8 Nov 2009 ( RO 2009 5367 ).
4 RS 142.31

Art. 17 Calculation of income of persons without gainful employment

(art. 19, para. 2, LAFam)

For the calculation of the income of persons without gainful employment, taxable income under the Federal Direct Tax Act of December 14, 1990 1 Is decisive.


Art. 18 Reservation for cantonal law

The cantons may lay down provisions which are more advantageous for the beneficiaries.

Section 4 A 4 Registry of Family Allowances

Art. 18 A Contents of the Family Allowance Register

1 The Family Allowance register contains the following data:

A.
The AVS number, surname, given names, date of birth and sex of the child giving entitlement to family allowances;
B.
The AVS number, surname, given names, date of birth and sex of the person entitled;
C.
The relationship of the child entitled to the family allowance with the right of the child;
D.
The professional status of the person entitled;
E.
The appropriate service under s. 21 C LAFam to fix and remit family allowances;
F.
The competent agency or metering body if it is not identical to the service referred to in the let. E;
G.
The type of family allowance;
H.
The legal basis for family allowances;
I.
The beginning and end of the law;
J.
The employer, if the family allowance compensation fund to which it is affiliated, requires it.

2 The Office shall issue directives on the details of the data to be seized.

Art. 18 B Services with access to the Family Allowance Register

The following services have access to the family allowance register by means of an appeal procedure:

A.
The services referred to in s. 21 C LAFTA
B.
The Swiss services responsible for coordinating family allowances in international relations;
C.
The cantonal authorities for the exercise of their supervisory function according to Art. 17, para. 2, LAFam;
D.
The Office, to the extent that it performs the tasks set out in Art. 27, para. 2, LAFam and 72, para. 1, first sentence, LAVS;
E.
The State Secretariat of the Economy, to the extent that it performs the tasks set out in Art. 83, para. 1, of the Unemployment Insurance Act of June 25, 1982 1 .

Art. 18 C Exceptions to accessibility to the public

1 The competent authorities with regard to adoption and measures for the protection of the child may, for the benefit of the child, request the Central Compensation Centre to make the data concerning a child inaccessible to the public.

2 The clearing house shall make the data inaccessible to the public within the period of one working day following the request.

Art. 18 D Obligation to communicate

1 As soon as the services referred to in s. 21 C LAFam accepts a claim for family allowances or makes a change affecting entitlement to allowances, they provide the data according to s. 18 A , para. 1, to the clearing house within the period of one working day.

2 Employers provide the services referred to in s. 21 C LAFam the data necessary for the fulfilment of the obligation to communicate provided for in para. 1 continuously. When they become aware of a change affecting entitlement to allowances, they shall communicate it within the 10 working day period.

Art. 18 E Control of the obligation to communicate

1 The Office shall monitor at least once a year the number of communications made by each service cited in Art. 21 C LAFam.

2 If there are errors or omissions, it is the duty of the service concerned to deliver the necessary data by providing it with a delay.

3 If the service does not comply with the summons, the Office shall inform the competent supervisory authority.

Art. 18 F Data Transfer and Processing

1 The transfer of data between the services cited in s. 21 C LAFam and the Clearing House are done by means of an electronic procedure.

2 The clearing house enters the data in the Family Allowance Register after completing the necessary checks.

3 Services cited in s. 21 C LAFam is responsible for the accuracy of the data.

Art. 18 G Collaboration

1 Services cited in s. 21 C LAFam is consulted on issues relating to the exploitation and further development of the Family Allowance Register.

2 They may, in particular, table proposals on further development and take a position on the Confederation's proposals.

Art. 18 H Data Protection and IT Security

1 Data protection and computer security are governed by the following provisions:

A.
The Order of 14 June 1993 on the Federal Data Protection Act 1 ;
B.
Art. 8 to 10 of the September 26, 2003, Order on Informatics in the Federal Government 2 ;
C.
The guidelines of the Confederation Informatics Council of September 27, 2004, concerning computer security in the federal government 3 .

2 The clearing house, the services cited in art. 21 C LAFam and employers take the organizational and technical measures necessary to secure the data.


1 RS 235.11
2 RS 172.010.58
3 These guidelines are available in electronic format on the IC website: www.isb.admin.ch/themen/sicherheit/00150/00836/index.html?lang=fr

Art. 18 I Retention Period

1 Data from the Family Allowance Register shall be kept for five years from the end of the month in which entitlement to family allowances has been extinguished. At the expiration of this period, they are proposed to the Federal Archives.

2 They are destroyed if the Archives does not consider their archiving to be useful.

Section 5 Right of appeal of the authorities

Art. 19

1 The Office and the relevant family allowance compensation funds are entitled to appeal to the Federal Court against judgements handed down by the cantonal insurance courts. The Office also has standing to appeal against judgements rendered by the Federal Administrative Tribunal.

2 Judgments must be notified by registered letter to the competent authorities.

Section 6 Statistics

Art.

1 A statistic on family allowances is established for the whole of Switzerland. Information on benefits paid in the sense of LAFam to employees, self-employed persons and persons without gainful employment is collected. 1

2 In particular, the statistics shall contain data concerning:

A. 2
The family allowance compensation funds, the employers and the self-employed, as well as the income subject to contributions;
B.
Funding for family allowances and administrative costs;
C. 3
The amount of benefits paid;
D.
Rights holders and children.

3 The cantons collect data from the compensation funds for family allowances. The Office shall issue directives on data collection and their presentation and processing by canton.


1 New content according to the c. I of the O of 26 Oct. 2011, effective from 1 Er Jan 2013 ( RO 2011 4951 ).
2 New content according to the c. I of the O of 26 Oct. 2011, effective from 1 Er Jan 2013 ( RO 2011 4951 ).
3 New content according to the c. I of the O of 26 Oct. 2011, effective from 1 Er Jan 2013 ( RO 2011 4951 ).

Section 7 Final provisions

Art. Executing

The Office shall be responsible for the execution of this Order subject to s. 15 and 23, para. 2.

Art. Amendment of the law in force

The amendment to the existing law is set out in the Annex.

Art. Transitional provisions

1 If the reserve of coverage within the meaning of s. 13, para. 2, is greater than the average annual expenditure at the time of the entry into force of the LAFam, it must be reduced within three years.

2 The Account for Family Allowances of the EFA shall reimburse the Confederation for the costs arising from its creation, paid in accordance with the interest of the market, within three years of the entry into force of this Order. It impacts these costs on employers.

Art. A 1 Transitional provisions of the amendment of 8 September 2010

1 The Family Allowance Register will be put into service during the year 2011. The Office shall fix the date in agreement with the Clearing Central and shall inform the services referred to in Art. 21 C LAFam at least two months in advance.

2 Services cited in s. 21 C LAFam communicates to the clearing house, until the 15th of the month preceding the commissioning, the data according to the art. 18 A , para. 1, for all family allowances paid from the date of commissioning.


1 Introduced by ch. I of the O of 7. 2010, in force since October 15. 2010 ( RO 2010 4495 ).

Art. 24 Entry into force

This order shall enter into force on 1 Er January 2009.

Annex

(art. 22)

Amendment of the law in force

The following orders are amended as follows:

... 1


1 The mod. Can be viewed at RO 2008 145 .


State 1 Er January 2013