Secondment of employees to Austria

Here, you will find information on legal provisions and practical advice to consider when it comes to posting and personnel leasing/hiring-out of employees.

Cross-border posting or personnel leasing* to Austria

The following questions need to be clarified prior to the posting or hiring out of an employee:

  • Where is the posting or personnel leasing company based? (EU/EEA/Switzerland or in a third country)
  • What nationality(ies) does the employee to be posted or hired out have?

Hinweis

Exceptions to the requirement of filing a "ZKO-notification" may apply if employees only travel to Austria for business meetings, participation in seminars and lectures, trade fairs, competitive events, etc. of short duration. 

Since the amendment to the Austrian Anti-Wage and Social Dumping Act ("LSD-BG") came into force on 01.09.2021, further exceptions apply, in the case of which no ZKO-notification must be submitted:

  • Top earnings of at least EUR 6,804 gross (2022) on average during and in the two months prior to the posting or hiring out 
  • Intra-group posting of employees under certain circumstances for a maximum period of 2 months per year
  • Comprehensive training measures, also of longer duration
  • University exchange, training and research programs and exceptions for lecturers
  • Delivery and collection of goods by personnel of the seller or lessor

Difference posting vs. personnel leasing

A posting to Austria generally occurs when a company sends an employee to Austria for a temporary period to perform a specific task (e.g. a contractual obligation to produce a work). The employee returns to their original workplace outside Austria after the posting. 

Posting clearly differs from personnel leasing of employees.

Personnel leasing occurs when a company makes its employee available to another company (via a leasing contract) without the involvement of the performance of a specific task. Therefore, the leasing company is not liable, for example, for the success of the creation of a work. In particular, personnel leasing is also assumed if the employee is organizationally integrated into the Austrian company and bound to it by instructions, and if the leasing company does not provide materials or tools.

Attention

Check carefully whether you are dealing with posting or personnel lease and, if in doubt, seek professional legal support! Even if you intend a posting on the basis of a contract for work, an examination by control authorities (in particular by the Ministry of Finance or social security) may show that personnel leasing actually is the case, for which the Austrian company would be liable as well.

Company based in EU/EEA/Switzerland posts or hires out an EU/EEA/Swiss national

No work permit or other confirmation from labor market authority is required. The company is only subject to the ZKO-notification obligation (unless an exception applies):

The posting must be reported to the Central Coordination Office for the Control of Illegal Employment of the Federal Ministry of Finance ("ZKO") by filing a ZKO3-notification prior to the assignment's start. In the case of personnel leasing, a ZKO4-notification must be submitted. Usually, the posting or leasing company itself submits the ZKO-notification; alternatively, a law or tax consulting firm, for example, can take care of this step.

Both types of notification require the specification of a person appointed to represent the posting or leasing company externally (e.g. entrepreneur, managing director under commercial law, responsible representative). This is the person who bears criminal responsibility for the company. If a responsible representative (usually a manager) is appointed by the posting or leasing company, this must be reported to the ZKO-authority by submitting the forms ZKO1-A (appointment) and ZKO1-Z (declaration of consent). If no responsible representative is appointed, the management or all members of the board of directors would be liable in the event of a penalty.

All wage and reporting documents must be kept available in German or English in electronic or physical form during the entire period of the assignment and must be presented in the event of an inspection by the financial police.

These documents include:

  • ZKO-notification as well as any amendment notifications
  • Proof of registration for social insurance (form A1), provided that the employee is not subject to social insurance in Austria
  • Employment contract or service slip
  • Wage slips, wage payment slips or bank transfer slips
  • Wage records, work records
  • Documents concerning the classification within the applicable collective bargaining agreement to verify the remuneration due for the duration of the assignmnet according to Austrian legislation

The place of document storage must be specified in advance in the ZKO-notification - you can choose from the following options:

  • Place of employment
  • Only in case of ZKO3-notifications: Contact person
  • Professional party representation registered in Austria
  • Branch office registered in Austria, where the posting or leasing employer carries out activities not only occasionally 
  • Independent subsidiary in Austria or Austrian parent company of a group of companies 

Note

The contact person (posted employee or one person selected to represent a group of posted employees), as defined in the ZKO3-notification, is obliged to provide information about the posting and act as a formal recipient of documents. Alternatively, a person authorized to professionally represent parties in Austria may be named.

If the required conditions are met (service and service procurement contracts, intra-group postings), it may be useful to submit a so-called frame notification for a posting of up to 6 months. This option can be selected in the standard form of the ZKO3-notification.

In addition, please note the following regarding changes related to already filed ZKO3- and ZKO4-notifications:

  • Changes to any data (personal data, salary, working hours, activity, etc.) must be reported immediately using the applicable amendment form. This is also required if incorrect data was mistakenly submitted in the originally filed notification.
  • Likewise, an assignment extension needs to be reported using the form.
  • The premature termination of an assignment must also be reported.
  • While assignments of several employees can be reported within the initial notification, it is also possible to subsequently report additional employees using the amendment form, provided that the period of their assignment(s) lies within that of the initial notification.
  • If necessary, cancellation notifications can also be submitted.

Potential changes in the location within the framework of a ZKO3-notification (posting) must also be notified using the amendment form.

Form ZKO3-amendment notification

Form ZKO4-amendment notification

Example

A German company posts five employees with German citizenship to Austria to install parquet flooring. One of the five posted employees is the leader of the group. Authorized by her employer, she has the right to issue instructions to her four other colleague and could be designated as the contact person in the ZKO3-notification. 

Company based in EU/EEA/Switzerland posts or hires out third-country national

If no exception is applicable, the posting or leasing company must submit a ZKO-notification for the third-country national to be posted or hired out prior the assignment's start. The Central Coordination Office is obliged by law to submit the notification to the labour authority ("AMS") who, in turn, issues an EU Confirmation of Posting ("EU Entsendebestätigung") or an EU Confirmation of Personnel Leasing ("EU Überlassungsbestätigung") to the EU/EEA/Swiss company and the Austrian company within 2 weeks of receipt of the notification. The prerequisite for the issuance of one of the mentioned confirmations is that the employee

  • has a work and residence permit valid for the duration of the posting or leasing to Austria for the country from which they are posted or hired out (details are to be mentioned in the ZKO notification),
  • is legally employed by the posting or leasing company, and that
  • all Austrian wage and working conditions as well as social security regulations are complied with.

In the case of personnel leasing, the notification must also include proof of the leasing company's trade license.

Note

If all requirements are met, the employment may be started before the EU Confirmation of Posting or Personnel Leasing is received. Should it then turn out that the requirements are not met and a negative decision be issued, the posting or personnel leasing must be terminated immediately.

Example

An Austrian industrial company commissions a Czech company without a registered domestic office to install a production machine in Austria, carried out by Russian employees.They continue to be subject to orders issued by the Czech company and are not integrated into the Austrian company. The Czech company reports the posting via a ZKO3-notification. The ZKO-authority forwards the notification to AMS who issues an EU Confirmation of Posting if all requirements are met.

Company based in a third country posts an EU/EEA/Swiss national

Neither the Anti-Wage and Social Dumping Act (LSD-BG) nor the Employment of Foreign Nationals Act (AuslBG) contains any legal basis for the obligation to report the posting of a skilled worker who is a national of an EU or EEA member state or Switzerland to Austria by a company from a third country.

Thus, no ZKO-notification has to be submitted for these employees.

Note

If an employee of your company is to carry out a regulated trade in Austria for the first time as part of a posting, you must notify this activity in advance (so-called "Dienstleistungsanzeige"/service notification). This notification must be renewed once a year if the company intends to provide services in Austria during the year in question.

Company based in a third country posts a third-country national

In case of a posting of an employee who is a third-country national by a company based in a third-country (outside the EU, the EEA and Switzerland), the Austrian company must apply directly for either a Permission of Posting ("Entsendebewilligung") or a work permit ("Beschäftigungsbewilligung") at the competent AMS. 

The Entsendebewilligung can be applied for if the employee is posted for no longer than four months.

For a period longer than four months, a Beschäftigungsbewilligung is required for the third-country national. The basis for this work permit is the so-called "Sicherungsbescheinigung" (= a guarantee from AMS that the work permit will be issued in the near future) and, depending on the duration of the posting, a visa or a residence permit.

If the employee is posted for less than six months, they require a visa. The visa must be applied for at the competent Austrian representative authority (embassy, consulate) in the country of residence.

In case of an assignment of more than six months, the employee needs a residence permit (e.g., "Betriebsentsandter").

In summary, the following steps are necessary for the posting of employees who are third-country nationals by a company based in a third country:

1. Application for a Sicherungsbescheinigung at AMS.

2. After receipt of the Sicherungsbescheinigung: Application for a visa or a residence permit, depending on the duration of the planned posting.

3. After receipt of the visa/residence permit: Application for a Beschäftigungsbewilligung at AMS.

A ZKO-notification is not required in this case.

Achtung

In the construction and ancillary construction trades, a Beschäftigungsbewilligung is always required when third-country nationals are posted, regardless of the duration of the posting!

In the following cases, neither a Permission of Posting nor a Beschäftigungsbewilligung is required; however, the Austrian company must notify AMS of the posting at least two weeks before the start of the activity and AMS will subsequently issue a so-called "Anzeigebestätigung" (notification confirmation):

  • Training within the framework of a joint venture (consortium of two independent companies) on the basis of a training program for up to six months
  • Intra-group training and further education at headquarters in Austria on the basis of a qualified program of up to 50 weeks
  • Posting of junior managers by an internationally operating company to a subsidiary in Austria belonging to the same group of companies for up to 24 months

Example

An Albanian company posts Albanian employees to an Austrian company for three months to perform a specific task to which the Albanian company has committed itself in a contract for work and services. The Albanian employees work on site with their own tools and are not subject to the instructions of the Austrian company. Since this is an activity in a construction trade, the Austrian company must apply for a Beschäftigungsbewilligung.

Company based in a third country hires out an EU/EEA/Swiss national

As with the posting of employees who are nationals of EU/EEA member states or Switzerland by a company based in a third country, there is no ZKO-notification required.

However, in thecase of personnel leasing from a third country, a so-called "Überlassungsbewilligung" (Permission of Personnel Leasing) is required. This permission must be applied for by the Austrian company at the trade authority despite the fact that the person hired out is an EU/EEA or Swiss national.

The following requirements must be met:

  • The employment of particularly qualified skilled workers is absolutely necessary from the perspective of labor market policy and for economic reasons.
  • These workers are available exclusively through personnel leasing from abroad.
  • The transfer does not jeopardize the wage and working conditions of Austrian employees in any way.

Company based in a third country hires out a third-country national

The above-mentioned also applies in the case of personnel leasing of third-country nationaly from a third country to Austria: an Überlassungsbewilligung (Permission of Personnel Leasing) is required, which must be applied for by the Austrian company at the trade authority.

The following requirements must be met:

  • The employment of particularly qualified skilled workers is absolutely necessary from the perspective of labor market policy and for economic reasons.
  • These workers are available exclusively through personnel leasing from abroad.
  • The transfer does not jeopardize the wage and working conditions of Austrian employees in any way.

The Austrian company then applies for a Beschäftigungsbewilligung at the competent AMS since the hired out employee is a third-country national.

If this skilled worker is hired out for less than six months, they require a visa, which must be applied for at the competent Austrian representative authority (embassy, consulate) in the country of residence.

If the assignment is longer than six months, a residence permit (e.g., "Betriebsentsandter") is required.

Further information on cross-border assignments and associated requirements can be found, for example, on the website of the Central Coordination Office of the Federal Ministry of Finance or on the posting platform.

Legal foundations

  • Sect. 18 Aliens Employment Act (“Ausländerbeschäftigungsgesetz” - AuslBG)
  • Hiring Out of Labour Act (“Arbeitskräfteüberlassungsgesetz - AÜG)
  • Anti-Wage and Social Dumping Act (“Lohn- und Sozialdumping-Bekämpfungsgesetz”- LSD-BG)

* Please note that in the case of personnel leasing or hiring out of employees (both terms used synonymously), apart from the Arbeitskräfteüberlassungsgesetz (AÜG), further labor law provisions may be applicable, which will not be discussed in more detail in the context of this overview. Finally, we would like to point out that ABA - WORK in AUSTRIA does not carry out individual case assessments with regard to the distinction between posting or personnel leasing.