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Secondment

Payment entitlements of workers posted across borders

Employees posted to other countries have a right to at least the statutory payment laid down by decree or collective agreement which is paid to comparable employees of comparable employers in the place where they work.

Special payments (such as the holiday supplement or Christmas supplement) have to be paid on a pro-rata basis for the respective wage period (in other words usually starting with the respective monthly wage, even if the collective agreement lays down the payment of a total amount at a later date).

Considerable fines in the case of underpayment are designed to prevent wage dumping and so-called social dumping.

Holiday entitlements of workers posted across borders

Employees posted abroad have, for the duration of their posting, a right to paid holidays according to the Holidays Act as long as the amount of holidays according to the legal provisions of their home country (the state where they usually work) is lower.

After completion of the posting, these employees retain the corresponding (for the duration of the posting) pro-rata share of the difference between the larger holiday entitlement according to Austrian law and the holiday entitlement which they have according to the legal provisions of their home country (the state where they usually work).

Employees for whom the holiday regulations of the Construction Workers Holidays and Severance Pay Act (BUAG) apply are excepted from these holiday regulations.

Obligations of the posting employer and the hirer

Foreign hirers are also considered to be employers in relation to certain obligations with regard to workers hired out to them whom they post to Austria to carry out work (posting of agency workers).

If an employer of agency workers thus posts a worker who has been hired out to it, it is considered to be the actual employer with regard to reporting and keeping documentation on file.

Notification of posting

Foreign employers have to notify the Central Coordination Office for the Monitoring of Illegal Employment of the employment of workers who are posted to Austria to continue their work. This has to be done electronically with the form ZKO3 before the start of the work at the latest.

A copy of the notification has to be kept readily available (or made available electronically).

Keeping wage and registration documents on file

The employer must keep a copy of posting notifications on file. The employer also has to keep documents about the registration of employees for social insurance on file or make them available electronically (particularly the social insurance document A1 or E 101) if the posted employees are not subject to compulsory social insurance in Austria. If an official permit is required for the employment of the posted workers in the state in which the employer is based, this also has to be kept on file.

Foreign employers are obliged to provenly keep wage documents in German for all posted workers on file at their place of work in Austria so that they can be inspected with regard to adherence to the payment which is due according to Austrian regulations. Labour contract may be kept in English too. This applies to the entire period of posting, even if the posting of individual employees has already ceased.

The following are considered to be wage documents: the employment contract or work card, wage slip, proof of wage payments or bank transfer slips, wage records, records of working hours and documents on wage classification.

Penalties in relation to obligations on keeping documents on file and notification

Employers who:

  • do not issue notifications, or do not report subsequent changes, or do so late or incompletely, or who knowingly give the wrong details
  • do not keep the required registration documents on file or make them available, or
  • who do not send the registration or wage documents in spite of being called upon to do so

commit a civil offence and shall be subject to a fine of between €1,000 - €10,000 (or in repeat cases from €2,000 - €20,000) imposed by the District Administrative Authority.

Employers who do not have wage documentation on file commit a civil offence will be subject to fines imposed by the District Administrative Authority as follows:

  • for each employee: €1,000 - €10,000
  • in repeat cases: €2,000 - €20,000
  • in the case of more than three workers affected: €2,000 - €20,000 each
  • in repeat cases: €4,000 - €50,000

Appointment of designated representatives responsible according to administrative criminal law

The appointment of representatives who are responsible for adherence to the administrative regulations in relation to posting only becomes legally effective when written notice of the appointment including evidence of the agreement of the appointed person has been received by the Central Coordination Office for the Monitoring of Illegal Employment (at the Ministry of Finance).   If the appointment of a representative is revoked or s/he resigns, the employer must inform the Central Coordination Office immediately in writing, otherwise a fine can be imposed.

Information on this responsibility, for example with regard to the conditions for an appointment, can be found in Section 9 of the Administrative Penal Act (Verwaltungsstrafgesetz).

Workers posted across borders in regulated trades

Carrying out activities within the framework of regulated trades or fields of business according to Section 94 of the 1994 Industrial Code (GewO) by workers posted across borders is conditional on the foreign business or business person:  

  • being authorised to exercise this trade in their home country if it is regulated there, or
  • if it is not regulated there, that it has been licensed to exercise the trade for at least two years and does so 
  • has concluded the relevant specialist training. 

According to Section 373a para. 4 of the Industrial Code, businesspersons have to notify the Federal Ministry of Science, Research and the Economy of their cross-border activities in advance. In the case of certain trades and fields of business (see Section 373a para. 5(2) GewO 1994), work may only be commenced after the receipt of a relevant notification sent by the Federal Ministry of Science, Research and the Economy.