The cross-border hiring out of workers in the EU
If a foreign employer or agency makes its workers available to an Austrian company to carry out work, this is referred to as cross-border personnel leasing.
Information in detail you will find at the posting of workers platform (please see below at "other websites and platforms".)
- Payment entitlement of workers hired out across borders
- Holiday entitlement of workers hired out across borders
- Entitlements in the case of redundancy and dismissal
- Obligations of agencies and hiring companies
- The cross-border hiring out of workers in regulated trades
Cross-border agency workers have a right to reasonable payment which is normal for the area. When assessing reasonableness, the pay based on collective agreements or legally established payment received by comparable workers for comparable activities in the same company should be used as an orientation for the duration of the hiring period.
Checks on wages are intended to avoid wage and social dumping, and considerable fines are set for cases of underpayment.
In the case of illness or accidents, of holidays or the duration of leave of absence for important personal reasons, cross-border agency workers have the same rights to continued payment as comparable domestic workers.
Cross-border agency workers have a right to paid holidays according to Section 2 of 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 leasing period, these employees retain the corresponding (for the duration of the leasing period) 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. Employees for whom the holiday regulations of the Construction Workers Holidays and Severance Pay Act (BUAG) apply are excepted from these holiday regulations.
Cross-border agency workers have a right to periods of notice and termination dates and a right to compensation if they are not kept to, particularly to redundancy pay.
If comparable employees who usually work in Austria benefit from special protection against redundancy and dismissal, this shall also apply cross-border agency workers.
Notification of agency workers
Foreign employers (= employment agencies) have to notify the Central Coordination Office for the Monitoring of Illegal Employment (at the Federal Ministry of Finance) of the employment of workers who, without work permits, are hired out across the border to Austria. This has to be done electronically using the web form ZKO4 before the start of the work at the latest.
Keeping registration, wage and social insurance documentation on file
The Austrian employer is obliged to keep a copy of the notification of agency workers, and - if the agency workers are not subject to compulsory social insurance in Austria - documents about the registration of the employees for social insurance (particularly social insurance document A1). These records have to be kept in a suitable form at the place of work or otherwise made available for inspection.
Foreign employment agencies are obliged to provenly make wage documents available to the client hirer (in German) for all leased workers at their place of work in Austria for the duration of their employment. In this way they can be inspected with regard to adherence to the payment which is due according to Austrian regulations. Labour contract may be kept readily available in English too.
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.
The Austrian client employer has to keep the wage documents on file at the place of work.
Penalties in relation to reporting obligations
Employment agencies (employers of agency workers) which do not notify the authorities, or not time, or who provide incomplete information or knowingly provide false information, or do not keep the required documents readily available and do not make them accessible electronically fines imposed by the District Administrative Authority:
- for every employee: €1,000 - €10,000
in cases of repetition: €2,000 - €20,000
Client employers who do not keep the required documents readily available and do not make the accessible electronically will be subject to fines imposed by the District Administrative Authority for every employee: €500 - €5.000, in case of repetition: €1.000 - €10.000.
Obligation of the hirer to keep records and send data to the authorities
Hirers of workers leased to Austria have to keep records on the following:
- Names, social insurance numbers, dates of birth, sex and citizenship of the agency workers categorised according to whether they are wage or salary earners
- Beginning and end of the hiring period for each agency worker
- Name and registered office address of the respective agency
In addition, once a year at the end of July, hirers also have to send the following data electronically to the service provider commissioned by the Federal Ministry of Labour, Social Affairs and Consumer Protection:
- Names, dates of birth, sex, citizenship, wage or salary earners
- Beginning and end of the hiring period for each agency worker
- States in which the hirer has registered offices
In addition, hirers of cross-border agency workers have to provenly inform the agency workers about the important details of their employment.
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 the hiring out of workers 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 (in the Ministry of Finance). If the appointment of a representative is revoked or s/he resigns, the agency or the hirer 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).
Cross-border hiring out of workers according to the Industrial Code (GewO 1994) is conditional on the agency having been authorised to carry out this work in its home country for at least two years, or on the professional qualifications which it holds being declared by the Minister of Economics and Labour to be equivalent to the certificate of proficiency for the profession according to Section 373d of the Industrial Code.
According to Section 373a para. 4 of the Industrial Code, agencies have to notify the Federal Ministry of Science, Research and the Economy in writing of their cross-border activities in advance.