Sending employees must be distinguished from temporary assignment of employees, which means temporary relocation of employees by an employer (agency) to perform work for a third party (user).
In the case of sending employees and their temporary assignment to Austria it is necessary to observe the following regulations and provisions:
1. Labour-law regulations and minimum wage
In the case of sending employees and their temporary assignment to Austria it is necessary to observe the provisions of Austrian labour law, if they are more favourable for the sent or temporarily assigned employee than the relevant legislation of the source country.
It is especially necessary to observe Austrian regulations on the protection of employees. Further it is necessary to observe Austrian regulations on the working hours and breaks for food and rest as well as regulations on free time at weekends and during holidays, which are regulated under the Working Time Act (AZG), the Free Time Act (ARG) and the collective agreements. The collective agreements are supra-corporate written agreements concluded between the employees’ and employer’s representatives (usually between the trade union and the employer’s organisation).
The weekly working time is usually 40 hours. Different working times can be agreed upon in the collective agreements.
The time actually worked by the sent employees must be recorded. Records must be available at the employee’s workplace as well as all other documents that allow the control of remuneration. Breach of duty to keep and have working time records available is subjected to strict sanctions.
Employees sent to perform work in Austria are at least entitled to remuneration for labour including bonuses, overtime and other additional pay, to which they are entitled to under Austrian laws, regulations or collective agreements (minimum wage). Temporarily assigned employees have an entitlement as stipulated in the collective agreement for the working site of the user in Austria or in the collective agreement for temporarily assigned employees.
2. Notification and other formal obligations
Companies with registered offices in a Member State of the EU or EEA or Switzerland must report the sending or temporary assignment of an employee before the commencement of work to the so-called Central Coordinating Organisation (ZKO) for the checking of illegal employment by means of Form ZKO 3 (for employee sending) or ZKO 4 (for temporary assignment). These forms are available on the Federal Ministry of Finance’ website in all languages.
The sending company with its registered office in a Member State of the EU/EEA or Switzerland, whose sent employees are citizens of a third country pursuant to Section 18 of the Employment of Foreigners Act (AuslBG) require EU confirmation of sending their employees. It is issued by the Labour Office (AMS), if the sent employee is duly employed in the source country and is employed in accordance with the Austrian wage and working conditions during the time of working abroad. Croatian employees also need EU confirmation of being sent under certain circumstances and on the basis of special provisions.
Companies with registered offices in third countries that send their employees do not have to report anything to the ZKO. The Austrian contracting authority is obliged to file an application for the dispatched employee, or a working permit directly to the AMS.
In the case of temporary assignment of employees from third country firms the Austrian company in which the concerned employee shall be temporarily employed requires a special permit for temporary assignment of employees. The application for temporary assignment of employees is submitted at the Trades Licensing Office and is only approved upon the fulfilment of certain conditions. It is subsequently necessary to submit an application for a work permit with the AMS.
3. Legal regulations on residence
Sent or temporarily assigned employees from a third country need a visa and in the case of residence for a period exceeding 6 months, they need a residence permit. EU citizens in the case of residence exceeding three months need confirmation of notification.
4. Social insurance
The sent or temporarily assigned employees shall continue to be insured according to the social insurance regulations of the source country, if
- the preliminary duration of the dispatching or temporary assignment shall be a maximum 24 months and
- sent or temporarily assigned employees shall not replace employees whose sending has expired (non-chain sending).
If these conditions are fulfilled, the competent social insurance authority of the source country shall issue Certificate A1 (a certificate that the sent employees or hired labour are already insured in the source country).
If these conditions are not met, the Austrian social insurance regulations shall apply.
5. Necessary documents
The following documents must be available in German at the workplace in Austria, where the sent or temporarily assigned employees will work, or at some other place:
- confirmation of applicable legal regulations on social security (Form A1)
- copy of the notice of sending
- wage records, from which remuneration to which the employees are entitled to during employment in Austria and have actually been paid to them is clear.
- Should an employee be sent from a EU Member State (excluding Croatia), but he/she is not a citizen of a EU Member State or is a citizen of Croatia, the working permit of the dispatching country
- Working time records