Based on the EU Posting of Workers Directive (96/71/EC) and the Enforcement Directive (2014/67/EU), EU member states can provide for a number of compliance obligations for cross-border employee secondments. The relevant regulations that foreign companies have to comply with in Austria are regulated in the so-called “Wage and Social Dumping Control Act”. The present article gives a brief overview of which types of secondments are covered by this Act, how the reporting obligations in Austria are structured, which documents must be kept available for possible audits during the posting to Austria, and which penalties companies may face in case of compliance violations.
Scope of the “Wage and Social Dumping Control Act”
In principle, the “Wage and Social Dumping Control Act” applies to every type of posting of a worker to perform work in Austria from another EU Member State or third country. However, the law itself provides for a comprehensive catalog of exceptions that do not trigger the reporting and documentation requirements described below. These exceptions include, for example:
- Business meetings without the provision of additional services
- Participation in seminars and lectures without providing additional services
- The participation in fairs (except the construction and dismantling of the exhibition facilities)
- Visiting and attending congresses
- Cultural events, which take place as part of a tour in which the event in Austria is only of minor significance, as far as the employee has to perform his work for at least a large part of the tour
- Participation at and handling of international sports competitions
- The work of an employee who receives a gross monthly salary of at least EUR 6,525 within a group of companies
- The posting of certain specialists within a group of companies, if the duration of the posting does not exceed two months per calendar year.
Postings from other EU member states or Switzerland must be reported via an online portal before starting work in Austria. In the case of hiring out of labour constellations, the form ZKO-4 should be used, for all other types of postings form ZKO-3 has to be filed.
During the period of the posting, the employer must provide the following documents in the event of an audit on-site:
- Employment contract
- Salary statement or bank transfer documents
- Payroll records
- Working time records
- Documents relating to wage level determination (in order to enable the audit authorities to check on fulfilment of the Austrian minimum wage requirements)
- A1 certificate of coverage
- Copy of the ZKO-3 or ZKO-4 notifications The documents must always be provided in German, the employment contract may also be submitted in English.
Penalties in case of compliance violations
The law provides for severe administrative penalties in the event of a breach of the reporting and documentation obligations set out above:
- Penalty for failing to submit the ZKO notification: EUR 1,000 to 10,000 / employee
- Penalty for breach of documentation requirements: EUR 1,000 to 10,000; if more than three employees are affected between EUR 2,000 and EUR 20,000