Notice of posting and Central Coordination Office

The followingsets out information on the obligation to notify the Central CoordinationOffice at the Federal Ministry of Finance, as well as providing informationfrom the Central Register of Administrative Offences for public-sectorcontracting authorities. You will also find more detailed information on theposting or hiring of employees from abroad, as well as links to otherauthorities and the relevant forms. Further duties of notification are relevantto "Responsible Representatives", and the monitoring and reportingduty under Section 26 (6) of the Act Governing the Employment of ForeignNationals (Ausländerbeschäftigungsgesetz,AuslBG) is also of relevance to commissioning undertakings (generalcontractors).

Notice of posting

The employment of personnel, whatever the nationality of the employee in question, posted to Austria by an undertaking based in a State of the European Economic Area (EU and EEA) or Switzerland for the performance of work or rendering of a service must be reported at the latest one week prior to commencement of work to the Central Coordination Office for the Control of Illegal Employment at the Federal Ministry of Finance, in line with Section 7b (3) of the Employment Contracts Adjustment Act (Arbeitsvertragsrechts-Anpassungsgesetz, AVRAG). In the case of a disaster/emergency, where work cannot be delayed and where contracts have to be completed in a short space of time, the notice must be forwarded immediately prior to commencement of work.
Notices may only be sent using the automated system, on the electronic forms provided by the Federal Ministry of Finance (ZKO 3).
The notice must be provided to the employer's representative or, if just one employee is posted, to such employee, either in copy form or in electronic form.

According to the duty of notification contained in Section 18 (12) of the Act Governing the Employment of Foreign Nationals, such notices of posting relating to nationals of third countries or citizens of Croatia during the transitional periods shall be passed on to the Austrian Public Employment Service (AMS) in order that they can be checked to verify if the employment in question requires a permit.
Where employment is in a protected sector, meaning certain services where, within the framework of the transitional arrangement, restrictions on the free movement of services are permissible, the terms of Section 18 (1) to (11) of the Act Governing the Employment of Foreign Nationals 

apply, i.e. a posting permit must be applied for; in the construction industry this application must be made to the Public Employment Service.

An employer (assigning company) with a registered office in the EU/EEA and Switzerland is considered to be such employee's employer pursuant to Section 7b (1) of the Employment Contracts Adjustment Act in respect of the personnel hired to it (= not its own core staff), where it assigns the employee to perform work in Austria.

Further information with regard to the entitlements under employment law of employees and the Anti Wage and Social Dumping Act as well as granting of a registration certificate where stays exceed three months may be found on the website of the Federal Ministry of Labour, Social Affairs and Consumer Protection.

Features of posting:

  • Taking up cross-border work by employees (generally based on a contract between a domestic principal and a foreign contractor AND
  • Whose usual place of work is outside Austria and where there is an intention to return to the sending state AND
  • The focus of the employment remains in the sending state and the managerial authority remains with the contractor (employer); the employee is not integrated into the business operation of the Austrian principal.

Posting is not considered to exist and notice of posting is therefore not required if the employee of an employer is employed in connection with the following short-term small-scale work in Austria and no contract of employment has been concluded with a domestic recipient of services:

  • Business meetings which exclude the rendering of services
  • Trade fairs and similar events, excluding preparatory and concluding work in respect of such event (setting up and dismantling exhibition facilities and the supply and removal of trade fair goods)
  • Attending and participating in conferences/congresses
  • Cultural events taking place within the framework of a tour (the work to be undertaken by the employee is undertaken at least for the major part of the tour)
  • Participation in and organization of international competitive events (international championships) excluding preparatory and concluding work in respect of the event (setting up and dismantling the facilities associated with the event, e.g. setting up and dismantling stages), as well as providing meals and dispensing beverages within the framework of the event (e.g. catering service).

What are construction activities (construction work)?

Whether work can be considered construction work depends not on the business licence but on the activity actually conducted in Austria.
The activity conducted in Austria is considered construction work if it can be assigned to one of the following types of business:

Master builder companies
Master bricklayer companies
Construction companies
Iron bending and laying companies
Demolition companies
Companies of holders of bricklaying concessions
Earthmoving companies (ditching and trenching companies)
Earthwork companies
Concrete drilling and cutting companies
Water regulation companies
Torrent and avalanche control companies
Land improvement companies
Road building companies
Commercial road companies
Chimney smoothing companies
Companies coating facades for the purposes of heat insulation
Master stonemason companies
Companies of holders of stonemason concessions
Artificial stone producing companies
Terrazzo production companies
Roofing companies
Plastering companies
Stove-fitting companies (except for purely production companies)
Paving and tiling companies
Master fountain companies
Companies of holders of fountain concessions
Deep drilling companies
Scaffolding hiring companies
Companies hiring construction machinery with service personnel
Heat, cold, noise and fire insulation companies
Asphalting companies
Sealing companies
Companies waterproofing against moisture and pressurised water
Stucco plasterer and plaster-boarding companies
Plastering companies
Stone laying companies
Screed manufacturing companies
Carpentry companies
Companies of holders of carpentry concessions
Parquet flooring companies
Temporary employment companies taking workers on for construction jobs.

Further information is supplied by the Bauarbeiter-Urlaubs- und Abfertigungskasse (BUAK) – the responsible authority.

Provision of "notification documents"

In addition to the obligation to provide or make available in electronic form a copy of the posting notice, in so far as no social insurance obligation exists in respect of the posted employees in Austria, the employer must be able to provide documents relating to the registration of the employee to the social insurance authorities (social insurance document A 1 or E 101).

In so far as, with regard to employment of the posted employee, an official permit is required in the employer's country of residence, it is a requirement also to be able to present such permit or a copy thereof.

Obligation to hold wage/salary documents for presentation if required

Foreign employers are under a duty to be able to present such wage/salary documents which are required for establishing the remuneration due to the employee under Austrian law, whereby these shall be in the German language and must be available during the entire period of posting to the place of work/deployment in Austria.

Requisite wage/salary documents shall be considered the following: in addition to the contract of employment or "notice of employment", wage slip, documentary evidence of wage/salary payment or bank transfer documents, wage/salary records, working time records and documents relating to wage category.

Undertakings with their registered office in the European Economic Area may offer their services on an unrestricted basis in Austria, on a cross-border basis and without having a permanent establishment. The freedom to provide services also comprises the right of undertakings to render their services with the assistance of their own personnel in Austria. In the context of the cross-border rendering of services, as a general rule, the rules of Austrian trade law must be observed. Where a trade is carried on which is a regulated trade in Austria, it is obligatory to forward a "cross-border notification of service" to the Federal Ministry of Science, Research and Economy. Details of this can be obtained from the Federal Ministry of Science, Research and Economy (BMWFW) and the Trade Commissions of the Austrian Economic Chambers.

Special provisions governing posting by undertakings from Croatia and from third countries

If an undertaking based in Croatia posts citizens of Croatia or third-country nationals to Austria for the purpose of temporary work, then in the liberalized sector an EU posting confirmation is required.

For employment in the following areas, a posting permit is required, and where the upper time limits set are exceeded, an employment permit is required.

  • Horticultural services
  • Natural stone working
  • The manufacture of steel and light metal constructions
  • Construction industry and related economic sectors
  • Security services
  • Cleaning of buildings, inventory and means of transport
  • Home nursing
  • Social services

In the construction and related industries, in any event the issue of an employment permit is required.

Undertakings with registered office in a third country do not need to transmit a posting notice to the Central Coordination Office pursuant to Section 7b (3) of the Employment Contracts Adjustment Act. The Austrian employer must apply for the posting permit to the Public Employment Service.

Further information can be obtained from the Public Employment Service.

In the case of assembly work and repairs related to the supply of plants and machines, for the first three months of posting, there is exemption from the obligation to comply with the pay provisions applying under Austrian collective pay agreements. If the posting lasts no longer than eight days, in addition, there is exemption from the obligation to grant the posted employee any applicable higher holiday entitlement under Austrian law (exemption for employees working on construction projects abroad, "Montageprivileg").

Cross-border hiring of employees from EU/EEA States and Switzerland

The cross-border hiring of employees is deemed to exist if a personnel supplier not based in Austria "provides" employees for undertaking work at a business in Austria within the framework of a service procurement contract.

Foreign employers (= personnel suppliers) must report to the Central Coordination Office for the Control of Illegal Employment the employment of employees hired in Austria without a permit on a cross-border basis at the latest one week prior to commencement of work.
For this purpose, only the electronic forms (ZKO 4) of the Federal Ministry of Finance may be used.
In the case of a disaster/emergency, where work cannot be delayed and where contracts have to be completed in a short space of time, the notice must be forwarded immediately prior to commencement of work.
Hiring shall be deemed to exist in the following circumstances:

  • When the contractually-owed work is rendered not in relation to the employer (= personnel supplier), but to a third party (= employer)
  • The employer engages the employee of the personnel supplier in order to carry out work relating to his/her own business requirements
  • The hired employee is integrated into the employer's business operation for the duration of the period of hire and is subject to the employer's professional supervision
  • He/she must follow the employer's instructions
  • No work differing or distinguishable from the products/service of the domestic employer is produced; and
  • The work is not predominantly executed using the tools and material of the foreign employer.

In order to assess whether hiring of labour takes place, the true economic content and not the external appearance of circumstances shall be considered.

For each hired employee not subject to social insurance in Austria, the employer must keep available for verification or render accessible in a suitable form at the place of work/deployment documents relating to registration of the employee for social insurance purposes (A1) as well as the registration (ZKO 4). The obligation to hold wage/salary documents shall be incumbent upon the domestic employer. The personnel supplier must be able to provide the employer with the documents.

With regard to the hiring to Austria of Croatian or third-country personnel by an undertaking with registered office in an EEA Member State or Switzerland, in any event a permit is required under the Act Governing the Employment of Foreign Nationals. This must be obtained from the Public Employment Service (AMS) by the Austrian employer.
Further information may be obtained from the AMS.

Responsible Representatives

The appointment of Responsible Representatives who are to assume responsibility subject to sanction under the law on administrative offences in the realm of the employment of foreign labour by a domestic undertaking shall only become legally operative once written notification (ZKO 1-I) relating to appointment plus documentary evidence concerning consent (ZKO 1-Z) of the person appointed has been received by the tax authority/Central Coordination Office.

Legal bases: Section 28a (3) of the Act Governing the Employment of Foreign Nationals and Section 9 of the Administrative Offences Act

From 1 January 2015, an undertaking with registered office abroad may transfer responsibility under the law on administrative offences for compliance with the Administrative Offences Act through appointment of a "Responsible Representative" pursuant to Section 7j of the Employment Contracts Adjustment Act in conjunction with Section 9 (2) and (3) of the Administrative Offences Act. Only once the appointment (ZKO 1-A) has been received, along with the declaration of consent by the appointed party (ZKO 1-Z), by the Central Coordination Office, will this become legally valid.

The resignation of a "Responsible Representative" from the undertaking or the revocation of an appointment (ZKO 1-W) must be notified immediately to the Central Coordination Office.

Central Register of Administrative Offences

Under Section 72 of the Federal Public Procurement Act, public-sector principals must base their assessment of the reliability of a bidder in particular on the information from the Central Register of Administrative Offences, pursuant to Section 28b of the Act Governing the Employment of Foreign Nationals. Undertakings bidding for a public contract abroad will receive a corresponding notification from the Central Coordination Office for presentation to the foreign agency issuing the request for bids.

Liability of general contractors

The principal shall be liable for breaches of its direct contractor if it has not complied with its duties of control and notification pursuant to Section 26 (6) of the Act Governing the Employment of Foreign Nationals.

An undertaking which assigns the rendering of a service either wholly or in part to another undertaking must ask the instructed undertaking before commencement of the employment to provide documentary evidence within one week of the authorization required under this federal Act with regard to the foreign personnel engaged. If the instructed undertaking does not comply with such a request within the required time limit, the instructing undertaking must immediately notify the Central Coordination Office for Illegal Employment at the Federal Ministry of Finance.

Name

Central Coordination Office for the Control of Illegal Employment

Address

Brehmstraße 14, A-1110 Vienna

Telephone
+43/50233-554726, -554499, -554771
Fax
+43/50233-5954194