Employee Secondment to Austria
The secondment or posting of an employee to Austria (cross-border employment) occurs when a company abroad sends its employee to Austria for a temporary period of time in order to fulfil a specified task (e.g., fulfil a contractual obligation to implement stipulated work). In this case, the employee generally returns to her or his original place of work outside of Austria after being posted. Here, you will find information regarding residence regulations as well as applying laws pertaining to the employment of foreigners and temporary employment.
Cross-border secondment of employees to Austria
- Where is the company posting the employee based (i.e., EU, EEA, Switzerland or a third country)?
- What is the nationality of the skilled worker who should be posted to Austria?
Exceptions are made for employees who are sent to Austria from abroad for business meetings, taking part in seminars and lectures, trade fairs, competitions etc., which are on a small scale and of short duration. Under certain circumstances, it is not required to report the secondment of such employees.
Company based in an EU or EEA member state or Switzerland posts a skilled worker who is an EU, EEA or Swiss national:
A copy of the notification must be sent to the responsible officer (“Beauftragte”) of the company.
The responsible officer is an employee appointed by the company who is granted the right to issue instructions to the seconded employee. The responsible officer is usually an executive. A copy of this notification must be available at the place of work or location of deployment in Austria.
If the company has failed to give the responsible officer a copy of the notification before the employee begins working in Austria, the responsible officer must report the secondment of the employee to the Central Coordinating Agency by submitting the form “ZKO 3“.
A German company sends five employees with German citizenship to Austria in order to lay parquet flooring. One of the five posted employees is the leader of the group. She has the right to issue instructions to the other four employees on behalf of the employer. The group leader is considered to be the “responsible officer” of the company as contained in the report to the Central Coordinating Agency.
Form ZKO 3 (Link: www4.formularservice.gv.at/formularserver/user/formular.aspx)
A German company sends five employees with German citizenship to Austria in order to lay parquet flooring. One of the five posted employees is the leader of the group. She has the right to issue instructions to the other four employees on behalf of the employer. The group leader is considered to be the “responsible officer” of the company as contained in the report to the Central Coordinating Agency. Form ZKO 3
The following documents regarding the seconded employee must be readily available in German at the place of work or employment in Austria for the duration of the secondment in Austria. These documents therefore have to be presented for review in case an inspection takes place or be made accessible in electronic form directly on site at the time of the investigation:
- Copy of the report made to the Central Coordinating Agency (secondment report - “Entsendemeldung”),
- Documents relating to the registration of the posted employee for social security insurance (Form A1) inasmuch as there is no social insurance obligation in Austria for the posted employee,
- Employment contract (in German or English),
- Payment slip, proof of wage payments or bank transfer statements,
- Wage or salary records, record of hours worked, and
- Documents related to pay characterisation.
Company based in an EU or EEA member state or Switzerland posts a skilled worker who is a third-country national
However, in order to issue the EU Posting Confirmation, the posted employee must:
- possess a valid work permit (“Beschäftigungsbewilligung”) for the country to which he or she is posted for the duration of the posting,
- be legally employed by the company, and
- be in an employment relationship which complies with Austrian wage and working conditions and respects Austrian social security regulations.
- Furthermore, the report has to contain the following:
- Passport of the posted employee,
- Confirmation of employment in the sending country, and
- Residence permit in the sending country.
If all requirements are fulfilled, the employment of the posted worker may already begin before the EU Posting Confirmation is received.
An Austrian industrial company contracts a Czech firm which does not have a business establishment in Austria to install a production machine in Austria by Russian workers. The Czech company reports the secondment to the Central Coordinating Agency, which then forwards the report to AMS. AMS issues an EU Posting Confirmation when all the prerequisites are fulfilled. Form ZKO 3
A company in a third country posts a skilled worker who is a third-country national
In the case of the secondment of employees who are third-country nationals by a company who is based in a third country (i.e., outside of the EU, EEA and Switzerland), the Austrian company must apply directly to AMS either for a posting permit (“Entsendebewilligung”) or a work permit (“Beschäftigungsbewilligung”).
You apply for a posting permit when the employee is posted to Austria for a period of less than four months.
You need a work permit for a skilled worker from a third-country who is to be posted to Austria for more than four months. The basis for the work permit is the so-called conditional assurance or confirmation of guaranteed work (“Sicherungsbescheinigung” - a guarantee issued by the AMS that the work permit will be subsequently granted) as well a visa or residence permit (“Aufenthaltstitel”), depending on the duration of the posting.
The employee needs a visa if he or she is posted to Austria for less than six months. This visa can be applied for at the responsible Austrian representative authority (embassy, consulate) in the employee’s country of residence.
If the employee is posted to Austria for more than six months, he/she also needs a residence permit (e.g., Residence Permit – Posted Worker (“Aufenthaltstitel - Betriebsentsandte”) (link to the section on temporary stays/time-limited stays).
To sum up, the following steps are necessary in order to post employees who are third-country nationals from a company based in a third country:
1. Application to the Austrian Public Employment Service AMS for a confirmation of guaranteed work.
2. Application for a visa or residence permit after the confirmation of guaranteed work has been obtained, depending on the duration of the planned secondment.
3. Application to AMS for a work permit after the visa/residence permit has been obtained.
In this case, a report about the posting to the Central Coordinating Agency is not required.
In the construction sector and related trades, a work permit is always required when posting a third-country national, regardless of the duration of the posting!
No posting permit or work permit is required in the following cases. However, the secondment must be reported to AMS no later than two weeks before the beginning of work, and AMS will then issue a confirmation of notification (“Anzeigebestätigung”):
- Training measures within the context of a joint venture (working group of two independent companies) on the basis of a training programme for a period of up to six months,
- In-house training and professional development measures at the headquarters in Austria on the basis of a qualified programme lasting up to 50 weeks and
- The posting of young executives by an internationally operating company to an Austrian subsidiary belonging to the same corporate group for a period of up to 24 months.
An Albanian company posts Albanian employees to an Austrian company for three months to fulfil specified tasks which the Albanian company is required to carry out within the context of a works contract (“Werkvertrag”). The Albanian employees work on site with their own equipment and are not bound to instructions issued by the Austrian company. These employees work in the construction sector. For this reason, the Austrian company has to apply for work permits for these employees.
A company based in a third country posts a skilled worker with EU, EEA or Swiss citizenship
- The obligation to pay the minimum salary as stipulated in the Austrian collective agreement,
- The availability of wage or salary records and the record of hours worked and
- Compliance with Austrian vacation laws, working time regulations as well as regulations relating to safety and health at the workplace.
If a skilled worker in your company should exercise a regulated trade (“reglementiertes Gewerbe”) (link) for the first time when being posted to Austria, you have to announce this activity in advance - a so-called Notification of Services (“Dienstleistungsanzeige”). This notification must be renewed once annually if the company intends to render services in Austria during the year in question. (Link to the online process www.usp.gv.at/at.gv.brz.linkaufloesung/usp/applikation-flow)
Difference between secondment and hiring out of employees
In the case of the hiring out of employees (“Arbeitskräfteüberlassung”), sometimes referred to as personnel leasing, thecompany generally makes its employee available to another company within the context of a labour supply agreement (“Überlassungsvertrag”). In this case, the purpose is not to carry out a specified task. For this reason, the company hiring out employees is not considered to be liable for the success in rendering work. The hiring out of employees is also presumed when the employee is organisationally integrated into the Austrian company (the hirer) and the company hiring out the employee does not provide any materials or tools.
Look closely to see whether there is a case of secondment or hiring out of employees. In case of doubt, obtain professional legal support! Even if you intend a secondment on the basis of a work contract, a review by the supervisory authority (especially the social security system or tax office) could conclude that the posting is actually the hiring out of an employee, for which the Austrian company is liable.
Hiring out of an employee by a company based in the EU, EEA or Switzerland
If the hired-out employee is also not from an EU/EEA member state or Switzerland, but from a third country, the Central Coordinating Agency will forward the report to the Austrian Public Employment Service (“Arbeitsmarktservice - AMS). In this case, AMS will issue an EU Hiring Out Confirmation (“EU-Überlassungsbestätigung”) (and there is no need for a work permit) if:
- The hired-out worker is properly employed and carries on his or her main activity in the country of origin,
- The worker is employed in conformity with Austrian wage and working conditions as well as the social security regulations during the term of hire, and
- The Austrian company engages a worker to fulfil an assignment that does not itself aim at the hiring out of workers.
The hiring out of the employee does not need to be approved by the competent trade authority (“Gewerbebehörde”).
Hiring out of an employee by a company based in a third country
This is also the case if the employee is an EU, EEA or Swiss national. The application for the Hiring Out Permit must be submitted to the competent trade authority and the permit can only be issued if:
- The employment of especially qualified skilled workers is indispensable for labour-market related and economic reasons,
- These workers are exclusively available due to being hired out from abroad, and
- The employment of such workers does not endanger the wage and working conditions of Austrian workers.
The company hiring out the employee must also notify the competent trade authority of this hiring out.
Subsequently, the Austrian company must apply for a work permit from AMS if the worker being hired out is a third-country national.
If third-country employees are to be hired out for a period of less than six months, they need a visa. This can be applied for at the responsible Austrian representative authority (embassy, consulate) in the employees’ country of residence.
If the third-country employee is posted to hired out to a company in Austria for more than six months, he/she also needs a residence permit (e.g., Residence Permit – Posted Worker (“Aufenthaltstitel - Betriebsentsandte”) (link to the section on temporary stays/time-limited stays).
- Are stipulated in one single service provision contract (“Dienstleistungsvertrag”) or service procurement contract (“Dienstverschaffungsvertrag”),
- Are agreed upon with the same company in Austria, or
- Take place within the same company group.
In this case, all the Austrian clients must be indicated in the notification.
For example, you can find further information on the cross-border hiring out or posting of employees and the related reporting requirements and obligation to keep reporting documents readily available on the Posting of Workers Platform (“Entsendeplatform”).
A single notification is sufficient even when several different Austrian companies act as the client when the posting:
Is for the purpose of fulfilling several similar service provision contracts, and The work for the different companies is related in terms of the period and place of fulfilment.
In these cases, the notification of posting or hiring out workers is to be submitted:
Before the very first case of cross-border deployment, When it relates to one company in Austria, and When it refers to a period not exceeding three months.
- 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)