Posting of workers platform

Can or must the employer appoint an agent?

It can be helpful for the posting undertaking to designate agents or contact persons in the country to which workers are posted, who are available to answer questions or receive suggestions. If for no other reason, this can provide practical advantages both for the posting undertaking and the authorities of that country.

The requirements in Austrian law differentiate between two distinct categories of cases:

  1. A contact person has to be designated in the posting notification. Documents issued by authorities can then be served on that person. The employer can also delegate to that person the responsibility of keeping documents available.
     
  2. There must be a natural person who is liable for the posting undertaking in administrative penal matters.

1. Contact person

The employer of the posting undertaking is required to designate a contact person. Documents issued by authorities can then be served on that person. The employer can also appoint that person to

One of the following must be appointed as a contact person:

  • one of the employees posted to Austria;
  • or a chartered accountant, lawyer or notary public (professional legal representative) established in Austria.

It is a punishable offence to omit the contact person in the posting notification or to provide incomplete details or to intentionally provide incorrect details
 

2. Agent responsible in administrative penal matters

Any administrative penal proceedings initiated against a posting undertaking are always filed against a natural person, who is made responsible for the administrative offence.

Where the posting undertaking is a legal entity, the parties responsible in administrative penal matters:

  1. either are those persons appointed to represent the legal entity in external matters, e.g. managing directors (as defined by commercial law) of a GmbH company (roughly: public limited company), management board members of an Aktiengesellschaft (roughly: joint stock company)
  2. or is a specifically appointed responsible agent.

Where the owner of the posting undertaking is a natural person, the party responsible in administrative penal matters:

  1. either is the owner of the undertaking (employer)
  2. or is a specifically appointed responsible agent.

In the cases mentioned above under clause 2, a responsible agent is appointed:

  • either on the decision of the employer of the posting undertaking (or, in the case of a legal entity, the bodies appointed to represent the employer in external matters)
  • or on the request of an Austrian authority, where necessary in order to ensure responsibility.

An individual can be appointed responsible agent only if the person:

  • is a senior-level employee entrusted with autonomous management responsibilities (e.g. head of the payroll department, for the case of underpayment of wages);
  • is empowered to issue orders within a scope of activity that can be clearly delineated;
  • could be prosecuted under criminal law;
  • has demonstrably consented to being appointed responsible agent.

Written notice of an appointment on the employer’s own decision, accompanied by evidence of the appointee’s consent, is required to be provided without delay to the Central Co-Ordinating Agency Charged with Investigating Illegal Employment (ZKO).
Forms ZKO 1-A und ZKO 1-Z are available online for this purpose.
The appointment has legal effect only once the ZKO receives written notice. 

Written notice must also be provided to the ZKO when the appointment is revoked or the responsible agent withdraws from the position. Form ZKO 1-W is available online for this purpose.
Failure to provide written notice of revoking the appointment or of withdrawal of the responsible agent is a punishable offence.

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