Posting of workers

What are the criteria to constitute a case of posting of workers? 

A posting of employees is the case where

• an employer
• posts one of their employees to perform work in Austria.

“Work without borders”, cross-border employment and spending working time in another country are phenomena that occur in practice in a variety of case situations and forms.
Some of these cases display common features that, taken together, are typical of “posting”. Where these features predominate in a particular case, i.e. where a case of posting to Austria is deemed to exist, specific related claims and requirements arise from employment law.

Features of posting include:

• The employee, whose habitual place of work is outside Austria, is in an employment relationship with the employer. The focus of the employment relationship thus is and remains outside Austria, even while the service is provided or the work is performed in Austria.
• The undertaking’s country of establishment is irrelevant. An undertaking having its place of establishment in Austria can also post workers.
• Plans to provide a service or perform other work of monetary value in Austria under the responsibility of that employer.
• Provision of that service or performance of that work in Austria by an employee who travels to Austria for that purpose (“posted employee”).
• The worker must be deployed in order to provide the service or perform the work in Austria; the worker is assigned for only a limited period, i.e. temporarily.
• If a contractual partner established in Austria exists for the service or work, the posted worker is not integrated in that contractual partner’s undertaking in Austria.
• The cross-border assignment of the worker has an economic value for parties other than just the employer and involves activities beyond, for example, attending events, conferences, trade fairs, isolated cases of collecting information, training or conducting negotiations.

What obligations apply to employers?

• Payment of at least the amount of remuneration that a law, an ordinance or a collective agreement in Austria defines for performing that work
• Granting annual leave entitlements pursuant to Austrian law, where more favourable for the employee
• Compliance with Austrian regulations relating in particular to working time, maternity leave, protection of young employees, safety and health at work

The employer is also required to meet various formal requirements associated with posting employees – some prior to posting and others during deployment or assignment of the posted worker.

An employer failing to meet any of these requirements is liable to an administrative penalty and prosecution in court. In the event of serious breaches of the terms of remuneration, the employer can be prohibited from further providing services in Austria.
It pays to meet the requirements. Details of the requirements are covered on this website under the sections on specific topics.