Posting workers to Austria

Austria implemented the provisions of the Directive 96/71/EC and of the Enforcement Directive 2014/67/EU into its national legislation. The current legislative framework includes the Anti-Wage and Social Dumping Act (LSD-BG), published in Federal Law Gazette Part I No. 44/2016, as amended, including to reflect Directive (EU) 2018/957.

In addition, the provisions of the LSD-BG ensure:

• compliance with Austrian wage and working conditions,
• prevention of wage and social dumping by companies.

For an overview of all Directives regulating the posting of workers, take a look at our complete guide on EU Posted Workers Directives.

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 or Switzerland must notify the Central Coordinating Agency (ZKO) within the Anti-Fraud Office (Amt für Betrugsbekämpfung) of the posting of any worker in the context of a temporary provision of services in Austria, within the Anti-Fraud Office (Amt für Betrugsbekämpfung)

Hence, foreign employers posting their employees to carry out work in Austria have to notify the ZKO in electronic form using the web form ZKO3. For cross-border hiring-out of workers, agencies must instead use form ZKO4. 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 liaise with the authorities. In particular, the contact person is either one of the posted employees, or a professional legal representative established in Austria. Furthermore, the contact person may be entrusted by the employer with keeping the following documents available, in paper or electronic form:

• 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 to 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.

Exception to the obligation of notification

Generally, certain cross-border work activities do not fall under Austrian regulations governing minimum remuneration, notification and availability of documents. For instance, the exception to the obligation of notification applies if the posted worker performs the following work in Austria for a short period, without providing additional services:

• 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, excluding stand assembly and dismantling.

Since the amendment to the Austrian Anti-Wage and Social Dumping Act (LSD-BG), other exemptions apply to postings of specialist workers within a company group for a maximum total of two months per calendar year and for the purpose of research and development, providing 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.

Posting of third-countries workers employed by EEA companies to Austria

In case the posted employee(s) are third-country nationals, 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 (EU-Entsendebestätigung), confirming that the statutory conditions for the posting are met. To do so, the AMS verifies that the third-country worker is:

1. Lawfully employed by the posting company and authorised to work in the country where it is established, and
2. 1. Employed in Austria in accordance with Austrian wage and working conditions during the posting period, with the applicable social security provisions also being complied with.

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 of receiving the notification, confirm to the posting company that the requisite conditions are met, and issue an EU posting confirmation or, if they are not met, ban such posting.

Work may begin before the confirmation is issued, provided that the statutory conditions are met and the notification obligations have been fulfilled.

Obligation to keep posting documents readily available

Foreign employers established in the EEA or Switzerland, posting their 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;
• Documents regarding the employees’ registration for social security insurance (A1 Certificate or E 101), or equivalent documents;
• 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 or English, during the entire period of the posting, meaning:

• 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.

Austrian working and salary conditions

When workers are posted to Austria to perform a temporary provision of services, employers must ensure compliance 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, working time including overtime must generally not exceed 12 hours per day or 60 hours per week, with an average limit of 48 hours per week over a reference period normally lasting 17 weeks, subject to permitted exceptions.

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.

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), where the activities fall within the scope of the Construction Workers’ Holiday and Severance Pay Act (BUAG).

Therefore, the foreign employer needs to comply with a series of requirements, namely:

• Report the posting for the purpose of construction works in Austria. The ZKO notification is forwarded to BUAK and serves as the initial notification. Where construction activities last longer than one calendar month, monthly follow-up reports must be submitted to BUAK by the 15th of the following month; 
• 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, pay the applicable contribution to the social and continuing training fund through BUAK, in addition to the annual leave supplement. 

The Dienstleistungsanzeige to carry on regulated trade in Austria

According to Section 373a of the Gewerbeordnung 1994 (GewO 1994), if a company lawfully established in another EU or EEA state wishes to carry on a regulated trade temporarily and occasionally in Austria, it must notify the competent authority before starting its 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 submit a Dienstleistungsanzeige. They include, for instance, metal technology for metal and mechanical engineering.

To submit the notification, the foreign company shall provide a series of documents, including:

• Attestation about the lawful establishment in the member or contracting state;
• Attestation regarding previous exercise of the activity concerned, where required;
• Evidence of professional qualifications of the responsible 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).