I. New definition for posted workers
A service contract between an employer based in the EU/EEA/Switzerland and an Austrian company is now a pre-requisite for the application of the posted worker rules as determined by the LSD-BG. Therefore, meetings or tasks to be performed without a contractual engagement of services does not fall under the posted worker rules as determined by the LSD-BG and does therefore not trigger the Posted Worker notification and document keeping requirements.
Be aware that the rules regarding postings by an employer established outside the EU/EEA/Switzerland, intra-company postings or postings of employees employed by a third party (body-leasing) remain unchanged. Despite the below described new exemptions administrative requirements for the posting of employees, please be aware that for third country nationals work permit, working visa and residence permit requirements may be applicable.
II. List of exemptions specified, and new exemptions were added
- New exemption for high salary earners: Employees who receive a monthly gross remuneration of at least EUR 6,660 (figure valid un 2021 and to be increased for 2022) are fully exempted from the posted worker rules.
- The Intra-company postings of specialists was specified: It is now clarified that the concerned employee must be particularly skilled with regard to particularly important tasks. Furthermore, the following activities were added to the exempted lists: delivery and commissioning, maintenance, and service work as well as repair of plants, machines, or computer systems.
- New exemption for (on-the-job) trainings: Provided specific requirements are met, trainings can be carried out for an unlimited duration.
- New exemption for supply/collection of goods: An exemption now applies to employees of the vendor or lessor (no freight forwarding business covered) and activities necessary for the commissioning or the use of goods where this is an integral part of the contract and carried out by the skilled workers of the vendor or lessor.
III. Implementation of EU Directive 2018/957:
Further amendments were made in relation to the implementation of EU Directive 2018/957:
- Postings limited to 12 months: Generally, postings should not exceed 12 months going forward. Where the effective duration of a posting exceeds 12 months, Austrian Labour Law conditions become applicable to the posted worker if they are more favourable. These would include (non-exhaustive list) maximum working time and rest periods, minimum paid annual holidays, remuneration (incl. overtime rates).
With a motivated notification, the service provider can extend the period of 12 months up to 18 months.
- Allowances/reimbursement of expenditure to cover travel, board and lodging expenses: Furthermore, going forward the employees shall be reimbursed according to the Austrian national law and/or the applicable collective bargaining agreement for expenditures to cover travel, board and lodging expenses if the posted worker is required to travel to and from their regular place of work in Austria to another place of work in Austria.
III. Facilitation of notification and compliance requirements
- Frame notification (“Rahmenmeldung”): If the recurring cross-border assignments of employees has been agreed, a single notification may be reported for a period of up to 6 months (until now: 3 months)before work is commenced for the first time
- Accumulated notification (“Sammelmeldung”): One accumulatedposted workers notificationcan befiled covering different engagement if the employee remains in Austria for a maximum of one week. Otherwise, different notifications must be filed for each engagement.
- The use of the “wrong” posted worker notification (ZKO3 (assignment) or ZKO4 (staffing) form is no longer subject to a fine.
- Social insurance proof: In case the employer is not able to receive the A1-Certificate prior to the start of the posting it is now possible to prevent a penalty, if an alternative document in German or English proofs the employee’s registration to social insurance.
- Remuneration related documents: The remuneration related documents may now be kept on record in Austria in German or English language (until now: German language only).
IV. New penalty provisions
The definition of „underpayment” remains unchanged. Likewise, the different administrative offences remain unchanged, such as penalties for (i) violation of reporting obligations, (ii) violation of the obligation to keep documents on record or (iii) underpayment, which ultimately can still lead to an accumulation of penalties.
However, the penalty extend for each violation has been amended as the accumulation of penalties regarding violations concerning “each employee” has been eliminated and furthermore, minimum penalties no longer apply, and maximum penalties have been introduced.
As of September 1st 2021, the following maximum penalties apply:
- violation of reporting obligation and the obligation to keep documents on record: penalty up to 20,000 €
- hindering the authority to execute remuneration related inspections: penalty up to 40,000 €
- failure to keep remuneration related documents on record: penalty up to 20,000 € (up to 40,000 € in case of reiteration).
As far as the administrative offence of underpayment is concerned, instead of an accumulation of penalties for each employee, the penalty increases depending on the amount withheld remuneration:
- underpayment up to 50,000 €: penalty up to 50,000 € (special provision for small companies with up to 9 employees)
- underpayment exceeding 50,000 €: penalty up to 100,000 €
- underpayment exceeding 100,000 €: penalty up to 250,000 €
- underpayment exceeding 100,000 € and the remuneration withheld exceeded (averagely) more than 40% of the remuneration due in the periods of underpayment: penalty up to 400,000 €