Cross-Border Posting of Workers in the EU
According to the Austrian regulations on posting, special provisions apply to posted workers with regard to payment and paid leave. The regulations on health and safety also have to be taken into consideration, particularly the Working Hours Act, the Rest Periods Act, the Act on the Employment of Children and Young People, the Maternity Protection Act and the Federal Act on health and safety in the workplace (Health and Safety at Work Act).
The Entitlement of Workers Posted Across Borders to Fair Wages
According to the Anti-Wage and Social Dumping Act, workers posted across borders have, for as long as they are posted, the right to at least the statutory payment set by regulations or collective agreements which is due to comparable employees of comparable employers at the place where they work.
Special payments (such as an annual holiday bonus or the Christmas bonus) have to be paid on a pro-rata basis for the respective period for which wages are paid (usually along with the respective monthly wage, even if a collective agreement specifies the payment of a total amount at a later date).
Wage inspections can lead to considerable fines being imposed in cases of workers being underpaid. This is intended to prevent wage- and social dumping.
The Entitlement to Paid Leave of Workers Posted Across Borders
In accordance with the Anti-Wage and Social Dumping Act, workers posted across borders are entitled to paid leave as laid down by Section 2 of the Paid Leave Act as long as the extent of their paid leave is less than the amount due according to the legal provisions of their home country (the place where they usually work).
After the end of their posting, these workers retain a proportion of their entitlement to paid leave: to be more precise, this is a pro-rata portion of the difference between the higher Austrian entitlement to paid leave and the entitlement to paid leave in their home country (where they usually work).
Workers for whom the paid leave regulations of the Construction Workers Holidays and Severance Pay Act apply are excepted from this arrangement.
The -Obligations of Employers and Agencies Who Post Workers and Those Who Deploy Them
With regard to the workers hired out to them whom they post to Austria for work (posting of hired-out workers), foreign employers of hired-out workers are viewed as normal employers with regard to certain obligations. This is particularly the case in relation to their obligation to notify the authorities and keep documents on file.
Notification of Posting
Foreign employers and agencies posting their employees to carry out work in Austria have to notify the Central Coordination Office for the Monitoring of Illegal Employment (based at the Federal Ministry of Finance) in electronic form using the web form ZKO3. This has to be carried out before the person starts work in Austria at the latest.
The employer has to keep a copy of the notification of the posting or make one available to the inspection authorities in electronic form. Subsequent changes to the information given have to be reported immediately (notification of changes).
Keeping Wage and Notification Records on File
The employer has to keep a copy of the notification of the posting. If the posted workers are not subject to compulsory social insurance in Austria, the documentation on their registration for social insurance (particularly social insurance document A 1 or E 101) has to be kept on file or made available in electronic form. If an official permit is required for the employment of the posted workers in the country where the employer or agency is based, this should also be kept on file.
Foreign employers and agencies are obliged to keep the wage records for all posted workers on file in German at their workplace in Austria so that inspections can be made on whether they are receiving the pay due to them according to Austrian law. This applies to the entire period of posting, even when the posting of individual workers has already finished.
The following are considered to be wage records: the employment contract or work card, pay slips, proof of the payment of wages or bank transfer slips, wage records, records of working hours, and documents on wage classification. Employment contracts can also be kept on file in English.
Penalties in Relation to the Obligation to Notify the Authorities and Keep Records on File
Employers or agencies who:
- do not notify the authorities, or do not notify them about changes, who notify them late or incompletely, or knowingly provide incorrect information;
- do not keep the required documentation on notification on file or make it available, or
- do not send the documentation on notification or wage records in spite of being called upon to do so,
commit an administrative offence which is sanctioned with fines ranging from €1,000 – 10,000 for each worker (in repeat cases from €2,000 – 20,000).
Employers or agencies who do not keep wage documentation on file commit an administrative offence which can lead to fines at the following levels from the district administrative authorities:
- For every employee: €1,000 – 10,000
- In repeat cases: €2,000 – 20,000
- In the case of more than three affected workers: €2,000 – 20,000 each
- In repeat cases: €4,000 – 50,000
The Appointment of Designated Representatives Who Are Responsible According to Administrative Criminal Law
The appointment of representatives who are responsible for adherence to the administrative regulations in relation to the posting 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 Federal Ministry of Finance). If the appointment of a representative is revoked or they resign, the agency or employer must inform the Central Coordination Office immediately in writing, otherwise a fine can be imposed.
Which persons can be appointed as representatives responsible for adherence is regulated in more detail in Section 9 of the Administrative Penal Act (Verwaltungsstrafgesetz).
Cross-Border Posting of Workers in Regulated Trades
Carrying out work within the framework of regulated trades (in accordance with Section 94 of the Commercial Code 1994) by workers posted across borders is conditional on businesses:
- being authorised to carry it out in their home country if it is regulated there, or
- having been authorised to carry it out for at least two years if it is not regulated there, or
- having concluded specialist training in the field.
In accordance with Section 373a para.4 of the Commercial Code, businesspeople have to notify the Federal Ministry of Digital and Economic Affairs in advance about their cross-border work. In the case of certain trades (see Section 373a para.5(2) of the Commercial Code), the work may only commence after receipt of a corresponding communication from the Ministry of Digital and Economic Affairs.
Further information on cross-border posting and the related obligations on keeping documents on file and notifying the authorities can be obtained from the Posting Platform.