In Austria, the provisions of the Directive on the Posting of Workers (Directive 96/71/EC) and of the Enforcement Directive 2014/67/EU have been implemented into national legislation by means of the Anti-Wage and Social Dumping Act (LSD-BG), published in Federal Law Gazette Part I № 44/2016. In addition, the provisions of the LSD-BG ensure compliance with Austrian wage and working conditions, prevent wage and social dumping by foreign companies.
Table of contents
- Formal requirements companies have to meet when posting workers to Austria
- Exception to the obligation of notification
- Posting of third-countries workers to Austria
- Obligation to keep posting documents readily available
- Austrian working and salary conditions
- Further obligations: BUAK and Dienstleistungsanzeige
- Regulatory Framework
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1. Formal requirements companies have to meet when posting workers to Austria
Under Section 19 of the LSD-BG, companies established in an EEA Member State must notify the Central Coordinating Agency (ZKO) of the Federal Ministry of Finance (BMF) of the posting of any worker in the context of a temporary provision of services in Austria.
Hence, foreign employers and agencies posting their employees to carry out work in Austria have to notify the ZKO in electronic form using the web form ZKO3. The notification shall be submitted prior to the start of the working activities in Austria at the latest.
In accordance with § 23 LSD-BG, when posting workers to Austria, the posting company shall designate a contact person to liase with the authorities. In particular, the contact person is either one of the posted employees, or a professional legal representative domiciled in Austria. Furthermore, the contact person shall keep copies of:
- The notification of posting (ZKO3);
- Social security document A1/E101 or equivalent documents;
- In the case of third country citizens, an official work permit in the country of domicile, if required;
- Pay documents and records of hours worked.
In the event of any subsequent changes of the original notification, companies shall submit a change report without delay. Circumstances requiring the transmission of a change report include any change of the actual place or places of work, of the posting period or the cancellation of the posting.
2. Exception to the obligation of notification
Generally, certain cross-border work activities do not fall under Austrian regulations governing minimum remuneration, registration and notification. For instance, the exception to the obligation of notification applies if the posted worker performs the following work in Austria:
- Business meetings;
- Participating in seminars, presentations, conventions and conferences; activities as part of international programmes of advanced training and research at universities;
- Participation in trade fairs and similar events, etc.
Since the amendment to the Austrian Anti-Wage and Social Dumping Act (LSD-BG), other exemptions apply to postings of skilled workers within a company group for a maximum total of two months per calendar year and for the purpose of research and development, training, planning project activities, business consulting, controlling or collaborating with departments of the company group which are responsible for central management and planning for more than one country.
3. Posting of third-countries workers employed by EEA companies to Austria
In case the posted employee(s) come from third countries, the ZKO automatically forwards the notification to the Public Employment Service (AMS). Pursuant to Section 18 para. 12 of the Employment of Foreigners Act (AuslBG), the AMS is competent to issue an EU Posting confirmation and to allow the posting of a non-EU worker. To do so, the AMS verifies that the third-country worker is:
- Properly employed in the posting country, and
- Employed in Austria in accordance with Austrian wage and working conditions during the posting period.
In order to allow the verification of the above requirements, the posting company must include in the notification details of the employment permit and of the residence permit which were issued in the posting country.
The regional office of the AMS shall, within two weeks, confirm to the posting company that the requisite conditions are met, and issues an EU posting confirmation or, if they are not met, ban such posting.
4. Obligation to keep posting documents readily available
Foreign employers, posting his workers to Austria, must keep the following documents readily available at the place of work during the entire posting period or make them accessible electronically on site:
- A copy of the ZKO3 report and any reports regarding subsequent modifications, as well as
- Documents regarding the employees’ registration for social security insurance (A1 Certificate or E 101), or equivalent documents, such as the application for the issuance of the A1 or E 101.
- If an official permit is required to employ the posted workers in the country where the employer is established, this permit or a copy thereof must also be kept readily available.
Besides, each company posting its staff to Austria shall keep all salary documents that are necessary to determine the wages due to the employees according to Austrian legislation readily available in German, during the entire period of the posting, meaning:
- Required wage or salary documents in German;
- Employment contract;
- Pay slips and proof of wage payment or bank transfer statements;
- Wage or salary records;
- Records of hours worked and;
- Documents relating to pay categorisation in order to verify the remuneration that is payable to the posted worker under Austrian law for the duration of the employment.
5. Austrian working and salary conditions
When posted to Austria to perform a temporary provision of services, workers must comply with Austrian regulations on working time and rest periods. Generally, the normal daily working time is 8 hours, while the weekly working time amounts to 40 hours, excluding overtime. In addition, the maximum of overtime allowed per week is 20 hours. Finally, the minimum rest period under Austrian law is of 11 consecutive hours after daily working time.
Furthermore, employees posted to Austria shall receive at least the amount of remuneration that is due them in Austria pursuant to a statute, ordinance or collective agreement.
It is therefore particularly important, prior to posting workers, to be aware of the minimum wage levels stipulated in the applicable Austrian collective agreement.
6. Further obligations: BUAK and Dienstleistungsanzeige
In the construction sector, foreign employers posting their workers to Austria need to observe a number of special regulations related to the Austrian Construction Workers’ Holiday and Severance Pay Fund (Bauarbeiter-Urlaubs- und Abfertigungskasse, BUAK).
Therefore, the foreign employer needs to comply with a series of requirements, namely:
- Report the posting for the purpose of construction works in Austria;
- Meet the conditions for the employees’ annual leave entitlement by remitting to the BUAK the monthly wage supplements for the category of annual leave (‘annual leave supplements’ and ‘holiday pay fund procedure’);
- Pay the employees at least the minimum wage in Austria as stipulated in the collective agreement;
- In the event that construction workers are hired out to an Austrian user undertaking and the workers continue to be covered by social insurance in their home country, a contribution to the BUAK’s AÜG-Fonds-Service for the social and continuing training fund (SO-Beitrag), in addition to the annual leave supplement.
6.1. The Dienstleistungsanzeige to carry on regulated trade in Austria
According to Section 373a of the Gewerbeordnung 1994 (GewO 1994), if a foreign company wishes to carry on a regulated trade in Austria, they have to notify the competent authority before starting their operations. Such notification is the Dienstleistungsanzeige and must be renewed once a year if the company intends to provide services in Austria during the year in question.
Section 94 of the GewO 1994 specifies which are the regulated business activities for which it is necessary to apply for a Dienstleistungsanzeige. They include, for instance, metal technology for metal and mechanical engineering.
The competent authorities for issuing the Dienstleistungsanzeige is the Federal Ministry of Labour and Economy (BMAW). To submit the application, the foreign company shall provide a series of documents, including:
- Attestation about the lawful establishment in the member or contracting state;
- Attestation regarding activities previously pursued exercise of the activity concerned;
- Professional qualification of the responsible legal representative;
- For certain trades, proof of absence of criminal records (e.g. security trade) or of the conclusion of liability insurance (e.g. real estate trustee).
7. Regulatory Framework
- Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services
- Directive 2014/67/EU of the European Parliament and of the Council of 15 May 2014 on the enforcement of Directive 96/71/EC concerning the posting of workers in the framework of the provision of services
Transposition of National Directives: