THE MOST IMPORTANT NEW PROVISIONS OF THE AUSTRIAN ACT AGAINST WAGE AND SOCIAL DUMPING

As of 1 September 2021, the amendment to the Austrian Act against Wage and Social Dumping (“Lohn- und Sozialdumping Bekämpfungsgesetz – LSD-BG”), which had been expected for quite some time, entered into force. The modifications are intended to eliminate existing ambiguities and contradictions with the case law of the European Court of Justice (ECJ) as well as the EU-Posted Workers Directive and the corresponding amending legislation. Moreover, the changes are also intended to consider the experience gained in practice in connection with the application of the provisions. The new legal provisions are applicable to postings and labor leasing assignments that began after 31 August 2021.

The following is an overview of the most significant changes:

Service contract and ongoing employment relationship.

According to the amendment of the LSD-BG, a corresponding service contract between the posting company and the service recipient in Austria as well as a valid employment relationship between the posting company and the posted worker are now required for cross-border postings.

Extension of the exceptions.

Furthermore,  the exceptions with regard to the scope of application of the LSD-BG were extended. The following provides a summary of categories of work activities which are excluded from the scope of application of the LSD-BG:

• employment relationships with entities of the public law;
• postings within the framework of a company group: the list of services that can be performed within the scope of the exemption has been extended;
• operations for training purposes;
• posting and leasing of employees with specific income levels (monthly gross wage in the last two remuneration periods before and during the posting or leasing, on average at least 120% of 30 times of the daily maximum valuation basis pursuant to the General Social Security Act [Allgemeines Sozialversicherungsgesetz – ASVG; amount in 2021: EUR 6,660, expected amount in 2022: EUR 6,804])
• mobile employees;
• postings or leasing on the basis of exchange, training, continued education or research programs, or as a seconded or leased lecturer at universities without a time limit;
• posted employees of a seller or lessor for the delivery or of the buyer or lessee for the collection of goods;
• posting or leasing for the initial commissioning or use of delivered goods.

Equal treatment with domestic employees.

Employees posted and leased to Austria are now treated the same as Austrian employees if the actual posting or leasing from the EEA or Switzerland exceeds a period of 12 months (or 18 months in exceptional cases). From this time on, the Austrian labor law standards are applicable in their entirety, insofar as these are more favorable than the corresponding standards of the posting country. Exceptions exist with regard to the regulations of the Corporate Staff and Self-Employment Provision Act and the Corporate Pension Act , as with regard to the formalities and conditions for entering into and the termination of employment contracts.

Entitlement to travel, accommodation and meal expenses.

The new provisions now clarify that posted employees are entitled to travel, accommodation and meal expenses incurred during the posting in Austria. The amount of the reimbursement is based on the standard compensation amount for comparable employees of comparable employers in Austria.

Simplifications of notification requirements.

It is now not an infringement of administrative law to mistakenly use an incorrect form for the notification of a posting or leasing now (for postings, the ZKO3 form has to be used, and for secondments, the ZKO4 form).

Framework notifications (“Rahmenmeldungen”).

Framework notifications can be submitted for employees who are repeatedly engaged across borders for the performance of service or service procurement contracts or within a company group. In the past, a framework notification was only possible for a maximum period of three months. Since the amendment entered into force, framework notifications can be submitted for a maximum period of up to six months.

Maintenance of wage records.

Simplifications were implemented in connection with the provision of the necessary wage documents in the event of a posting or leasing. It is now possible to provide the employment contract, the employee registration for social insurance, as well as other wage documents in German or English. If employees – who are not mobile employees – are not posted for more than 48 hours, it is sufficient to provide the employment contract as well as the working time records.

Length of availability of wage records.

In the course of the amendment of the “LSD-BG”, the powers of the financial police were also extended. The latter can now demand the provision of the wage documents up to one month after the end of the posting or leasing. Therefore, it is necessary to keep the relevant documents available even after the termination of the posting or leasing.

Aggravation of administrative penalty provisions.

With the entry into force of the amendment, the so-called "accumulation principle" was repealed. Accordingly, there is now one single violation of administrative law regardless of the number of employees affected by the infringement. At the same time, however, new penalty ranges without minimum penalties were implemented. Accordingly, penalties of up to EUR 400,000 are possible, depending on the type and severity of the violation of administrative law. The conditions for imposing a payment stop, a payment ban and the provision regarding security payments have also been amended.

Information requirements for leasing.

It is now stipulated that the foreign employer (lessor) of a worker leased across borders to Austria has the duty to inform the local employer (lessee) and the employee with regard to the applicable statutory labor law provisions and the provisions of the collective bargaining agreement applicable regarding the remuneration of the employee.

Conclusion.

The amendment made some necessary changes to make the application of the “LSD-BG “easier from a practical point of view. Nevertheless, cross-border postings and leasings to Austria continue to be very complex issues with numerous ambiguities and pitfalls, where employers are recommended to consult legal experts. The Deloitte Legal team will be happy to assist you with any questions you may have.