Facts

R. (born 1934) worked as a secretary and accountant at the advertising agency company X in Bern from May 1, 1990. On March 26, 1992, the company terminated her employment. From July 1, 1992, she registered with the unemployment office. Subsequently, R. was able to work for her former employer to varying degrees and also found additional employment at company Y in Wabern. From August 1, 1992, R. took up a 90% permanent position at company Z.

The Bern Unemployment Insurance Fund rejected R.'s claim for unemployment benefits from August 1, 1992, as she had taken up a suitable permanent position at company Z and simultaneously earned interim earnings at company X. R. then appealed to the Administrative Court of the Canton of Bern, which overturned the contested decision and remanded the case to the Unemployment Insurance Fund to determine the differential compensation.

The Federal Office for Industry, Crafts and Labor (BIGA) filed an administrative court appeal with the request to overturn the cantonal decision and remand the case to the Unemployment Insurance Fund for a new calculation of the interim earnings.

Considerations

The Federal Insurance Court states that the revised Art. 24 AVIG (Unemployment Insurance Act) regulates all forms of dependent employment, which were previously subsumed under the various assessment standards or principles of part-time work, interim earnings, and replacement work.

The insured person is entitled to compensation for loss of earnings under Art. 24 paras. 1-3 AVIG as long as they do not take up suitable work within the meaning of Art. 16 AVIG during the relevant control period. The other requirements established by case law for the existence of interim earnings work (temporary nature, transitional character, easy terminability) no longer need to be met.

If the insured person takes up work that is suitable, particularly in terms of wages, there is no room for the assumption of interim earnings. Any replacement income should not be taken into account, contrary to para. 188 of the BIGA circular. However, the requirement of a minimum loss of earnings is legally compliant, as activities with a lower loss of earnings are to be subsumed under Art. 24 para. 4 AVIG.

The question of the suitability of employment in terms of wages is assessed only in relation to an employment relationship. The requirement of industry and local customary wages mentioned in Art. 24 para. 3 AVIG must also apply to…