How can workers who are posted or hired out to Austria have their annual leave entitlements acquired in Austria paid out?
A distinction needs to be made between annual leave remuneration (Urlaubsentgelt or holiday pay) and payment in lieu of leave (Urlaubsabfindung), depending on whether an employee actually takes annual leave or only accepts compensation instead.
Annual leave pay (holiday pay) is paid out to an employee who actually takes holidays during the posting or hiring-out period or within six months afterwards. In the latter case, the employment relationship existing at the time of posting or hiring-out to Austria must still be existing.
Payment in lieu of leave is paid out to the employee at the earliest six months after termination of the posting, provided that the entitlement to annual leave has not already been claimed in the form of actual holidays.
- Holiday pay and payment in lieu of leave are paid out by the Construction Workers’ Holiday and Severance Pay Fund (BUAK) and must be requested from the BUAK.
- Annual leave pay and payment in lieu of leave are remitted directly to the account specified by the employee.
- The employer is responsible for requesting payment of annual leave pay.
- The employee (worker) is responsible for requesting payment in lieu of leave.
- The BUAK remits social insurance contributions and payroll taxes to the competent authorities in each case.
- All forms for requesting payments are available from the BUAK website (in German).
Annual leave pay
A signed copy of the form entitled “Application for leave pay pursuant to Article 33 et seq. of the Austrian Construction Workers Leave and Severance Pay Act” (in German: Einreichung um Urlaubsentgeltansprüche gemäß § 33f BUAG) has to be submitted to the BUAK.
The form can be submitted at the earliest during the month prior to annual leave and must be received at the latest during the month after the month when holidays were taken.
The BUAK provides the employee and the undertaking posting that worker with a printed statement of annual leave pay.
Social insurance contributions and payroll tax are separately itemised in this statement.
Payment in lieu of leave
The employer is responsible for submitting to the BUAK an “Application for compensation according to BUAG Article 10 (1)” (in German: Antrag auf Urlaubsabfindung laut § 10 (1) BUAG).
This presupposes that the employee is not currently in an Austrian employment relationship that falls under Austrian holiday pay fund regulations.
A statement informing them of the payment is sent only to the employee.
Note: Leave pay entitlements acquired with the BUAK are forfeited if not claimed by 31 March of the third year after acquiring annual leave entitlement.
Annual leave entitlement is acquired when the employee is paid by the company; this is also the point in time for determining when entitlement is forfeited.
Example: The days of annual leave acquired in 2014 have to be taken by 31 March 2017 at the latest. This entitlement is irrevocably forfeited as of 1 April 2017 and can no longer be claimed.