1. Nº 60 .17 Madrid, 2 de junio de 2017 AU STRIA. NUEVA VARIACIÓN REGLAS SALARIO MÍNIMO
3. 1 Information on the posting of transport sector workers from the E EA and Switzerland Labour law provisions General information In Austria, regulations intended to combat wage and social dumping in all sectors, inclu d- ing the transport sector, entered into effect as of 1 May 2011 and have been in force since then. The previously applicable legal provisions were modified only slightly as of 1 January 2017. Those are laid down in the amendment to the Anti - Wage and Social Dumping Act ( Lohn - und Sozialdumping - Bekämpfungsgesetz, LSD - BG ) published in Federal Law Gazette I no. 44/2016. The regulations governing the notification of posting workers to Austria and the requir e- ment to keep documents available during the posting period were amended as of 1 June 2017 to make them significantly simpler and take into account the special conditions of transport services. The information provided below refers to the posting of employees to Austria for the pur- pose of providing transport services. It does not cover temporary agency w ork (i.e. hiring out workers to third parties). Whether or not an individual is an employee is determine d accor d- ing to Austrian law. This information refers equally to the carriage of goods and passengers. It is intended to supplement the general information provided under www.entsendeplattform.at Definition of posting – what types of work arrangements are involved? Posting of workers to Austria presupposes that the employee’s customary place of work is outside Austria . It is immaterial whether any Austrian - based client exists; a case of posting may exist even without a client in Austria. The transport sector comprises the carriage of both persons and goods . In particular, it i n- cludes the transport of tourists (especially by bus, ship) accompanied by a m obile tourist guide. Cases of the posting of workers as defined in the LSD - BG exist pa rticularly under the fo l- lowing work arrangements:
11. 9 Payslip, proof of payment by the employer or bank transfer statements Documents relating to pay categorisation (e.g. education or training and earlier e m- ployment periods, if stipulated as significant in the collective agreement) . Records of the hours worked for each posted employee Even if the records of the hours worked have already been inspected during the in- spection, they have to be submitted to the tax authorities upon request. • How are documents to be submitted and which periods have to be covered? The documents listed above hav e to be submitted to the tax authorities only upon specific request , but need not be kept readily available. It is possible to only have the documents translated only after the authorities have requested them, but they still have to be submitted in time and in German language. The documents have to be submitted within a period of 14 calendar days after the end of the calendar month of the inspection. If the pay documents are not submit- ted to the tax authorities within this period or are incomplete, this is deemed a fai l- ure to keep the pay documents readily available and the applicable sanctions will be imposed. The pay documents will have to be submitted for the calendar month of the inspe c- tion of the employee and, if the employee worked in Austria in the month before, also for that month. The requirement for the pay documents to cover two calenda r months was laid down because the notification period for the transport sector was extended to six months and the individual cases of posting d o not have to notified any more.
7. 5 comprises driving time, the time for performing other tasks (such as loa ding and unloading ) and times of readiness to work when drivers excluding breaks (for instance wait times while others load or unload goods). Unladen journeys within Austria are also usually considered as working time that is subject to notification under the posting of workers scheme and for which the driver must b e paid the wages stipulated in the Austrian collective agreement ; examples include journeys back to the border after unloading in the case of terminating traffic and journeys to the l oading point in the case of originating traffic, also in the case of cabotage). Unladen transit journeys through Austria are not considered as working time that would be subject to notification under the posting of workers scheme and required to be paid in a c- cordance with the Austrian collective agreement. When a transit journey is interrupted or terminated for the purpose of cabot age transports or to transport goods from Austria to another country, however, such carriage is indeed considered working time that is subject to notification under the posting of workers scheme and must be remunerated in accord- ance with the Austrian colle ctive agreement. When a driver continues transit to leave Au s- trian territory after completing cabotage operations, this is not considere d posting of a worker subject to notification. Notification requirements: General information on new requirements: N otifications of cross - border posting to Austria relating to the transport sector are r e- quired • in summary form for each 6 - month period, regardless of the individual cases of posting. • The ZKO - 3 form (framework/collective notification) may no longer be used for the transport sector; the “summary notification” is the only permitted form . • Notification information comprises primarily the employees expected to be posted to Austria and the licence plate numbers of the vehicles to be used. • If other employees or v ehicles than those listed in the notification are posted or used in the respective six - months period, this has to be notified to the authorities. • Data as previously required, including information on the non - Austrian service provider, the place of employment in each case are no longer needed. Notification has to be made before starting work. With originating traffic and terminating traffic, drivers are considered to start working when they enter Austrian territory . In the case of cabotage operations, it is sufficient to provide notification before actually starting work (i.e. before driving to the loading point). When carrying passengers, drivers are considered to start working when they enter Austrian territory.
2. Nº 60 .1 7 Madrid, 2 de junio de 2017 AU STRIA. NUEVA VARIACIÓN REGLAS SALARIO MÍNIMO Las autoridades austriacas acaban de modificar las obligaciones derivadas del LSD – BG (su norma sobre trabajadores desplazados) a partir del 1 de junio de 2017. Se adjunta un resumen detallado de las nuevas disposiciones en inglés. Los principales cambios pueden resumirse en: 1. Se introduce un nuevo formulario de registro "en bloque" para los sectores altamente móviles, incluido el transporte por carretera y el transporte de pasajeros (válido hasta 6 meses) - ZKO 3 - T disponible aquí (en alemán e inglés) https://www4.formularservice.gv.at/formularserver/user/form ular.aspx?pid=fe66cedb506e495c94b3e826701443e5&pn=B0d 66e914664149109b455bce26ceca4a&lang=en 2. Los documentos siguientes deben estar a bordo o estar disponibles electrónicamente en el momento del control: el formulario ZKO 3-T , el formulario A1 y el contrato de trabajo (en alemán o inglés). 3. Las nóminas y otros documentos de prueba sobre el salario del conductor sólo deben estar disponibles ex post cuando así lo soliciten las autoridades de control. Ya no es necesario llevarlas a bordo . Si usted debe enviar trabajadores a ese país, tenga la precaución de consultar regularmente la página de información de las autoridades austriacas http://www.entsendeplattform.at/cms/Z04/Z04_10/home donde se actualizan las últimas informaciones oficiales que, como ya hemos comprobado, son cambiantes. Debe ser que sus legisladores sufren del mismo mal de atolondramiento que está asolando nuestro mundo. En ASTIC estamos atentos a la situación e informaremos a nuestros afiliados tan pronto como se disponga de nueva información. C/ Príncipe de Vergara, 74, 3 planta - 28006 MADRID Tlf.: 91 451 48 01 / 07 – Fax: 91 395 28 23 E-mail: [email protected] Nota: Prohibida la edición, distribución y puesta en red, total o parcial, de esta i nformación si n la autorización de A ST IC
5. 3 of goods is an ancillary activity within the business as a whole. The maximum total vehicle weight is not relevant. The buyer/lessee/processor/owner has collected the goods, which have been bought/hired/processed or are to be processed, directly in Austria by the co mpany’s workers using the company’s own (hired/leased) vehicles, where the c arriage of goods is an ancillary activity within the business as a whole. The maximum total veh i- cle weight is not relevant. As part of transporting the company’s own goods (own employees) between places of business of one and the same company , the goods (or employees) are delivered to or collected in Austria by the company’s own employees, where the car riage of goods (or persons) is an ancillary activity within the business as a whole . The maxi- mum total vehicle weight is not relevant. If goods are transported on a company’s own account, this can be documented a c- cordingly. • Tourist trips (passe nger transport) with destinations within Austria provided that: the trip involves destinations that are outside Austria as well as outside the co untry in which the trip originates; and no persons join or leave the trip in Austria. • Example of a case not involving posting: A tourist trip through Austria that begins in country A (e.g. Hungary) and ends in coun- try B (e.g. Slovenia). • Explicit exemptions: Breakdown and roadside assistance services if the driver of the defective ve hicle/the vehicle involved in an accident is a member of an automobile association or has breakdown cover and, according to the terms and conditions applicable, t he car is required to be towed by a foreign breakdown assistance service provider. It is not a case of posting either if a vehicle is towed on police orders. If the driver directly commissions a breakdown assistance service provider o f his choice with towing the vehicle, it may be a case of posting, depending on the ex act circumstances; Private bus trips organised by associations, if the bus is driven by a member o f the association who is not paid for it; P ick - up service for hotel guests by the hotel’s own pick - up service; C ar transfers carried out by car dealers (seller of the car). • Exemptions in ship transportat i on: If a vessel only remains in an Austrian harbour during the winter months in which no transport services are provided, this is not considered a case of posti ng. If a ship’s crew only boards or leaves the vessel in Austria, while the actual transport servic es are provided abroad, this does not constitute a case of posting either.
9. 7 Keeping documents available and submitting documents: The following documents have to be kept readily available and submitted after an inspe c- tion: 1. A1 social security document (in the language of the issuing country): In the event that it is not possible to have the A1 document issued prior to the posting : a n application for issue of the A1 certificate document along with other docume nts ind i- cating that the employee is registered for social insurance when working in Aus tria (in German). This includes, for example, A1 documents which have already been issued to the employee that confirm social insurance registration. The translation need not be certified . 2. A copy of notification of posting: In some cases, for instance during cabotage operations, a copy of the regi stration do c- ument might not be able to be kept readily available in the vehicle due to scheduli ng or for technical reasons; in such cases the transaction number or reference number issued with registration should be kept available. 3. Pay documents t hat show at a minimu m the amount of remuneration due and actually paid out to the employee during the assignment in Austria The pay documents include: Employment contract or written record of the content of the employment contra ct in accordance with Information Directive 91/ 533/EEC; Payslip, proof of payment by the employer or bank transfer statements Documents relating to pay categorisation (e.g. education or training and earlier e m- ployment periods, if stipulated in the collective agreement as being signific ant) and Records of the hours worked for each posted employee Wage records must be available in German or in German translation . An English version or translation of the employment contract (or written record of the conte nt of the e m- ployment contract in accordance with Information Directive 91/533/EEC) can also be kept available. The translation need not be certified. Proof of wage payment or bank transfer statements can also be in the language of the country of issue (i.e. not in German) if an inspector is able to clearly recognis e th e pay period, the amount of remuneration and the pay recipient. The records of hours worked can be recorded using the (analogue or digital) recording equipment customarily used in the transport sector, provided that the recordings ind i- cate the hours worked that are required to be paid as specified in the Austrian co llective
10. 8 agreement. It should be noted in this regard that additional hours besides driving time may be required to be paid. 4. Where an employee is to be posted from an EU Member State but is not a citizen of an EU Member State , when carrying out cabotage operations that employee must keep available any work permit required for the posting country. Where an employee who is a citizen of Croatia is to be posted from an EU Member State, when carrying out cabotage operations that employee must keep availab le any work permit required for the posting country. Requirement to keep documents readily availab le and submit documents: for which e m- ployees, where and in what form? • General remarks: Pursuant to the new requirements, it is mandatory to keep readily available certain documents exclusively in the vehicle , while other documents have to be submitted to the authorities only in case of an inspection. The documents are to be kept readily available for those employees currently carrying out transports in Austria. The documents are required to be kept in the vehicle in which the employee is travelling and ma de available to inspection authorities. Documents can be kept available either in printed form or as readable electronic do c- uments (to be viewed on a display); in this case the technical devices have to be in the vehicle when entering Austrian territory. If the information is not stored on the technical device itself (but on a server abroad, for example), access to these data must be possible during an inspection. In case such a c- cess is not possible, the documents will be considered not kept readily avai la ble. U n- readable electronic data, such as when stored on a USB flash drive, similarly do not meet requirements. • Which documents are definitely required to be kept available in the vehicle d uring the period of posting: Copy of notification of posting Social insurance certificate A1 (or similar documents permitted instead) Employment contract/statement of terms and conditions (Dienstzettel) Records of hours worked: Records of the hours worked have to be kept available in case of an inspection . In case of an o n- site inspection, tax authorities are allowed to inspect the records of the hours worked of the 28 days preceding the day of the inspection. • Which documents have to be submitted to the authorities in case of an inspection?
8. 6 Data stored from previously submitted notifications can be imported for new notifi cations. This can appreciably reduce the effort for completing the notification fo rm. Notifications for the transport sector which were submitted before 1 June 2017 and apply to periods thereafter remain effective; instead of another framework notification after the specified date, notification in accordance with the new provisions has to be made . Transport notification: contents and form requirements: Notifications on posting mobile employees in the transport sector has to be ma de exclusiv e- ly pursuant to this section for a period of six months in each case and has to include the following information : • employer’s name and address and business licence or field of business; VAT identific a- tion number • name and address of persons appointed to represent the employer in external matters • unless the driver is the contact person : name and address of the contact person purs u- ant to Section 23 nominated from among the employees posted to Austria or of persons established in Austria and authorised to professionally represent the parties ( Section 21 Para. 2 no. 4) • names, addresses, birth dates, social security numbers and applicable soc ial security institutions as well as the nationalities of the workers who will probably work in Austria in the given period • licence plate numbers of the vehicles operated by the employees, including means of road/rail/water transport • amount of remuneration payable to the individual employee under Austrian law and date of commencement of the employment relationship with the employer • type of work and deployment of the worker , taking into account the applicable Austr i- an collective agreement • the authority issuing the permit as well as the refere nce code, issue date and period of validity or a copy of the permit, provided that an official permit is required to employ the posted workers in the country where the employer is established • the authority issuing the permit as well as the reference code, issue date and period of validity or a copy of the permit, provided that an official permit is required to employ the posted workers in the country where the employer is established Retroactive changes of data (e.g. employee, licence plate number) shall be reported without delay. Form: The ZKO form is available on the website of the Austrian Federal Ministry of Fi nance (www.bmf.gv.at).
4. 2 • Cabotage (where goods are loaded and unloaded in Austria) • Traffic terminating in Austria (goods are loaded outside Austria and unloaded in Au s- tria), including cases where the client is based outside Austria • Traffic by non - Austrian companies which originates in Austria (goods are loaded in Au s- tria and unloaded outside Austria), even for a client based outside Austria • T he items above also apply by analogy to the carriage of passengers (occasional service, regular service, also tourist trips in general which have their destination i n Austria, i n- cluding in particular trips by bus, taxi or hired car, ship or train) • U nladen journeys • I rregular or one - time transports also qualify as cases of posting. • Examples of cases of posting: Transport of skiers to Austria A tourist trip through Austria that begins and ends in country A (i.e. circular tour of Austria). No posting of workers as defined in the LSD - BG exists particularly in these cases: • Transit traffic for the carriage of goods or persons: Goods are not loaded or unloaded and passengers do not embark or disemb ark in Au s- tria; in addition, traffic is not for the purpose of transporting goods or perso ns to Au s- tria, rather the trip through A ustria is necessary in order to reach the actual destination. • Exemption “carriage of goods on own account” The “carriage of goods on own account” pursuant to the LSD - BG includes certain cases of transport from and to Austria where the transport service is only a secondary service provided as part of a legal transaction (please refer to the examples below). In a typical example a purchaser in Austria purchases a commodity abroad and the transport of this commodity to Austria is then carried out by the seller in one o f its own vehicles and driven by a driver employed by the seller. In this case, the “transport” service is only a secondary service to the purc hase and is thus only of subordinate importance in relation to the free movement of goods and se r- vice s; for this reason, such “transport services” are not governed by the LSD - BG . If the commodity is, however, transported by a separate carrier different from the sell- er, the service provided is considered to be provided independently from the pur chase and is thus subject to the LSD - BG . Cases: The vendor/lessor/producer/processor/owner has delivered the goods, which have been sold/hired - out/produced or are to be processed, directly to Austria by the co m- pany’s workers using the company’s own (hired/leased) vehicles, whe re the carriage
6. 4 What obligations apply to the employer? • Compliance with the Austrian minimum wage as stipulated in the collective agreement • Notification of posting (form available from www.bmf.gv.at ) • Keeping readily available and/or submitting documents : Notification Documents showing social insurance registration Pay documents Employment permit for employees with third - country citizenship Compliance with the Austrian minimum wage as stipulated in the collective agreement: • Workers in the road haulage sector (i.e. the carriage of goods using motorised vehicles) fall under the collective agreement for the road haulage sector . With workers employed by companies that are active in the carriage of goods using only vehicles with a max i- mum permitted total weight of not more than 3,500 kilograms, the collective agreement for the transport trade for small loads needs to be observed. • In the passenger t ransport sector , the collective agreement for private bus companies has to be observed. In the case of taxi companies, workers fall under the collective agreement for passenger vehicle transport . • In the shipping industry, the following collective agreement governs the wo rking cond i- tions for employees: http://www.kollektivvertrag.at/kv/oesterreichische - schifffahrtsunternehmungen - arb - ang . Where a company does not belong to either the passenger transport or roa d haul age sector but is additionally active in transport as part of business activities in anothe r sector , co m- pany workers fall under the collective agreement applying to that sector. It should be noted, however, that certain types of transport occurring in bus iness activities are not considered to involve the posting of workers (refer to the sec tion entitled “Definition of posting”). All collective agreements can be viewed at www.kollektivvertrag.at . The minimum wage defined in the collective agreement applies to the entire w orking time spent in Austri. For drivers working in the carriage of goods or passengers, working t ime
