Central Co-Ordinating Agency Posting and Secondment Reports

Below you will find information about the reporting duties to the Central Co-Ordinating Agency of the Federal Ministry of Finance (Zentrale Koordinationsstelle, ZKO) and information from the Central Register of Administrative Offences for public-sector contracting authorities. You will find further information on the posting or secondment of employees from abroad to Austria, links to other authorities and references to the respective forms. Further reporting duties concerning the “responsible officer” and the monitoring and reporting duty pursuant to § 26 VI of the Employment of Foreigners Act (Ausländerbeschäftigungsgesetz, AuslBG) for subcontracting companies (general contractors).
In Austria, the provisions of the Directive on the Posting of Workers (Directive 96/71/EC) and of the Directive on the Enforcement of the Directive on the Posting of Workers (Directive 2014/67/EU) have largely been implemented into national legislation by means of the Anti-Wage and Social Dumping Act (Lohn- und Sozialdumping-Bekämpfungsgesetz, LSD-BG, published in Federal Law Gazette Part I № 44/2016, as most recently amended). Basically, it is always a cross-border issue; the Employment of Foreigners Act must also be taken into account in regard to third countries. The distinction between the cross-border secondment of workers as a special form and other types of posting is essential.

Characteristics of the posting of workers

the cross-border employment of workers AND
their customary place of work is outside of Austria, there exists the desire to return to the posting country AND the focus of the employment relationship remains in the posting country, the managerial authority lies with the contractor (employer): there is no integration of the employee into the operations of the Austrian customer

There are legal exceptions to the concept of posting of workers. Therefore, there is no need to report a posting if the employee is posted to Austria solely for the purpose of doing the following work, which is small-scale and of short duration (§ 1 V of the Anti-Wage and Social Dumping Act, LSD-BG)

business meetings without rendering any other services or
participation in seminars and lectures without rendering any other services or
participation in trade fairs and trade fair-like events, except for preparatory and concluding activities for the event (assembling and dismantling exhibition facilities and delivering and removing trade fair objects) or
attending and participating in conferences and conventions or
participation in and organisation of cultural events in the areas of music, dance, theatre or cabaret performances and similar areas, taking place within the scope of a tour, in which the event in Austria is only of minor significance, provided that the employee works during most of the tour at least (the work to be provided by the employee must be provided at least for the majority of the tour), or
participation in and organisation of international competitions (international championships), with the exception of preparatory and concluding activities for the event (assembling and dismantling of facilities for the event, e.g. assembling and dismantling stages), as well as providing food and beverages at the event (e.g. catering services) or
work as a mobile employee or as a crew member (§ 4 of the Ship Crew Ordinance) in the cross-border transport of freight and passengers (transport sector), provided that the work is performed exclusively within the scope of transit traffic and the habitual place of work is not in Austria. Intermittent transit (transit in stages) and destination traffic based on cabotage work are the exceptions to this; or
work as an employee who receives a monthly gross remuneration of at least 125% of 30 times the maximum contribution basis per calendar day, pursuant to § 108 III of the Austrian General Social Security Act (as per 2016: € 6,075), within a group as defined by § 15 of the Austrian Stock Corporation Act (Aktiengesetz, AktG) or § 115 of the Austrian Limited Liability Companies Act or
work within the scope of international education and further training or research programmes at universities (Universities Act 2002), at University Colleges of Teacher Education (Higher Education Act 2005) or universities of applied sciences (University of Applied Sciences Studies Act)

True economic content – assessment criteria

When assessing whether an employment relationship, a cross-border secondment, or a posting of workers exists, it is the true economic substance that is relevant, not the outer appearance of the facts (§ 2 I of the LSD-BG).

The existence of a posting does not require conclusion of a service contract between an employer not established in Austria and a recipient of services operating in Austria (§ 2 III of the LSD-BG).

Characteristics of cross-border secondment of workers

Cross-border secondment of workers exists if a temporary work agency not established in Austria “makes employees available” for the provision of work to a principal company in Austria. The rules for secondment by a temporary work agency headquartered in an EU Member State, an EEA State or in Switzerland are contained in the LSD-BG. The AusIBG and the Temporary Agency Work Act regulate secondment from a third country and secondment of employees as citizens of third countries.

Foreign employers (temporary work agencies) headquartered in an EU Member State, an EEA State or in Switzerland must report the employment of workers or quasi-subordinate workers who are seconded to Austria on a cross-border basis PRIOR to the commencement of work to the Central Co-Ordinating Agency for Control of Illegal Employment. Subsequent changes must be communicated immediately to the Central Co-Ordinating Agency with the relevant change notification. Only the electronic forms (ZKO4) of the Federal Ministry of Finance may be used for this purpose.

The following assessment criteria apply to a secondment (§ 4 II of the AÜG)
If the contractual work is not carried out for the employer (temporary work agency), but for a third party (principal), or
the principal deploys the workers of the temporary work agency to carry out work on its behalf, or
the seconded worker is integrated into the operations of the principal for the duration of the secondment and is subject to its technical supervision, or
he/she must follow the instructions provided by the principal, or
no work is carried out that deviates / is different from the products, services and interim results of the domestic principal, or the work is not performed primarily with the tools and materials of the foreign employer, or
the contractor is not liable for the success of the provision of the work

True economic content – assessment criteria

When assessing whether secondment of workers exists, in particular § 4 II of the Temporary Agency Work Act or comparable Austrian legislation (§ 2 II of the LSD-BG) are decisive.

Reporting duty for employers / temporary work agencies headquartered in another Member State of the EU, EEA and in Switzerland

Party subject to the reporting duty

According to the forms used, these reports are referred to as “ZKO 3 reports” or as “ZKO 4 reports”, respectively.

This reporting duty applies to

employers that post workers to Austria (ZKO3)
temporary work agencies that second employees to Austria on a cross-border basis (ZKO 4).

Reporting deadline

The report must be provided before the start of the posting (secondment). A separate report is to be filed for each posting (secondment) (§ 19 I of the LSD-BG).

Framework reports (combined reports) are no longer permitted, with two exceptions:

A framework report can be provided for a period of up to three months in the case of service contracts and service procurement contracts, as well as in the case of postings within a group (§ 19 V of the LSD-BG).

In the case of repeated deployment of a worker who is posted to fulfil similar service contracts, provided that there is a close geographical and temporal connection between the service contracts (§ 19 VI of the LSD-BG).

The report must be submitted prior to the start of work; for services in the transport sector, the report must be submitted prior to entry into Austria, pursuant to § 19 II of the LSD-BG (exception § 1 V 7 of the LSD-BG).

Form

The report shall be submitted exclusively by filling in the electronic forms of the Federal Ministry of Finance. (§ 19 II of the LSD-BG).

Content of the reporting duty

The exact content of the reporting duty is set out in § 19 III (postings) and IV of the LSD-BG (cross-border secondments). It includes information on the employer, employee and the scope of the work in Austria.

Employers headquartered in an EU Member State, an EEA State or in Switzerland are required to report the employment of workers posted to Austria, regardless of their nationality, pursuant to § 19 of the LSD-BG.
Each posting must be reported separately and any subsequent changes to the information must be reported immediately (change notification).
The reports (ZKO3) must be submitted PRIOR to the commencement of work, with no exceptions, by using the electronic forms, to the Central Co-Ordinating Agency of the Federal Ministry of Finance for Control of Illegal Employment.

With regard to mobile workers in the transport sector (rail, overland, air or maritime transport of freight and/or passengers), pursuant to § 19 II of the LSD-BG, the report must be submitted BEFORE entry into Austrian territory. Mobile workers must keep the reporting documents readily available as soon as they enter Austrian territory (in the vehicle), except for transit traffic WITHOUT cabotage.

The report and change notification must be submitted to the contact person (§ 23 of the LSD-BG) or, if only one worker is posted, it must be submitted as a copy or in electronic form.
A principal who posts an employee to Austria to perform work shall be deemed to be an employer in terms of the reporting duties pursuant to § 19 of the LSD-BG.

According to the reporting duty pursuant to § 18 XII of the AuslBG, all posting reports regarding third-country nationals or Croatian citizens during transitional periods must be forwarded to the Public Employment Service [Arbeitsmarktservice (AMS) ] for review in regards to whether work subject to authorisation is involved.

In case of work in a protected sector, i.e. certain services in which restrictions on the freedom to provide services are permitted within the framework of the transitional arrangement, the provisions of § 18 I to XI of the AuslBG must be applied. This means that a posting permit – in the construction sector a work permit – must be applied for with the Public Employment Service.

For further information on the legal employment rights of workers and the Anti-Wage and Social Dumping Law, as well as on the issuance of a registration certificate for stays longer than three months, please visit the website of the Federal Ministry of Labour, Social Affairs and Consumer Protection at http://www.entsendeplattform.at/

Obligation to keep “reporting documents” readily available

In the case of a posting of workers for the provision of work in Austria, employers headquartered in an EU Member State, in an EEA State or in Switzerland must keep the following documents readily available at the place of work/employment in Austria during the entire posting period or make them accessible electronically on site at the time of the investigation:

a copy of the posting report (ZKO3) and any reports regarding subsequent changes (change notification), as well as
documents regarding the employees’ registration for social security insurance (social security insurance document A 1 or E 101), if there is no social security insurance requirement for the posted workers in Austria. If, at the time of investigation, the employer furnishes evidence in German showing the inability to obtain these documents from the competent social security institution prior to the posting, equivalent documents in German must be provided. Equivalent documents include an application for the issuance of the A1 or E 101 AND confirmation of the competent social security institution that the worker is subject to the foreign social security scheme for the period of posting.
If an official permit is required to employ the posted workers in the country where the employer is established, this permit or a copy thereof must also be kept readily available.

If the option is used to keep the documents at one of the locations mentioned in § 21 II of the LSD-BG, in derogation of the above, and this is indicated in the report (ZKO3), they must also be made accessible electronically at the time of survey or investigation.

In the case of a secondment of workers on a cross-border basis, the obligation to keep all of the reporting documents (ZKO4, social security documents, required permits) readily available or to provide them applies to the principal at the domestic place of work/employment.

In this case, too, the option to keep the documents readily available in an approved location, pursuant to § 21 II of the LSD-BG, can be used, if this is notified by the temporary work agency headquartered in an EU Member State, in an EEA State or in Switzerland in its report (ZKO4).

Obligation to keep wage or salary documents readily available

All employers that are not headquartered in Austria, whose employees perform work in Austria, are required to keep all wage or salary documents that are necessary to determine the wages due to the employees according to Austrian legislation readily available in the country and in German, during the period of employment or during the entire period of the posting at the place of work/employment in Austria, or make these accessible electronically directly on site and at the time of the investigation, even if the employment of the individual employee in Austria ended earlier.

Required wage or salary documents in German:
Employment contract or statement of terms and conditions
Pay slips
Proof of wage payment or bank transfer statements
Wage or salary records
Records of hours worked and
Documents relating to pay categorisation in order to verify the remuneration that is payable to the posted worker under Austrian law for the duration of the employment

The employment contract must be kept readily available in either German or English.

In the case of cross-border secondment of workers, the domestic principal is obligated to keep the wage or salary documents readily available.

The temporary work agency must demonstrably provide the wage or salary documents to the principal.

Special arrangements for posting by companies from Croatia and from third countries

If a company headquartered in Croatia posts Croatian citizens or third-country nationals to Austria for the purpose of performing temporary work, an EU posting confirmation is required for the liberalised sector.

For employment in the areas indicated below, a posting permit is required, and if the legally permitted time limits are exceeded, a work permit is.

Gardening services
Stone masonry work
Production of steel and light metal construction
Construction and related industries
Protection services
Cleaning of buildings, stock and means of transport
Home health care
Social services

In the construction industry and related trades, issuance of a work permit is required in any case.

Employers (companies) headquartered in a third country are not required to submit a posting report to the Central Co-Ordinating Agency (§ 19 I of the LSD-BG). The Austrian customer must apply for a posting permit at the Public Employment Service.
You can find more information at the Public Employment Service (AMS).

In the case of assembly work, commissioning and related training or in repair and servicing work in connection with the delivery of equipment (exclusively) which cannot be performed by domestic workers, the obligation to comply with the collective agreement requirements applicable in Austria does not apply within the first three months of the posting. Furthermore, if the posting does not last longer than eight days, the obligation to grant the posted worker the higher paid holiday time that he/she is entitled to under Austrian law (assembly prerogative pursuant to § 3 V and § 4 III of the LSD-BG) does not apply. The posting report must be submitted in any case.

What are construction jobs (construction work)?

Whether work is to be viewed as construction work, is determined not according to the business licence but according to the work that is actually being performed in Austria.
Construction work is the activity that is actually performed in Austria, if it can be assigned to one of the following types of operations:

Master builder companies
Master bricklayer companies
Construction companies
Building iron bending and laying companies
Demolition companies
Holdings of holders of concessions in the bricklaying trade
Earth-moving companies (dike digging companies)
Earthworks companies
Concrete drilling and cutting companies
Water regulating companies
Torrent and avalanche control companies
Amelioration work companies
Road construction companies
Freight railway construction companies
Chimney grinder companies
Companies for the coating of façades for the purpose of thermal insulation
Master stone masonry firms
Companies of the holders of concessions in the stone masonry trade
Artificial stone production companies
Terrazzo manufacturers
Roofing companies
Paving companies
Stove-fitter companies (with the exception of pure production holdings)
Tile and slab companies
Fountain maintenance company
Enterprises of the holders of concessions for the well-making trade
Deep drilling operations
Scaffolding rental companies
Companies renting construction machinery with operating personnel
Heat, cold, sound and fire insulation
Asphalting companies
Blacktop companies
Companies of sealers against moisture and water under pressure
Stuccoworker and drywall finishers
Plasterers
Stone wood laying companies
Screed manufacturing companies
Carpentries
Companies of the holders of concessions of the carpentry trade
Parquet-laying companies
Temporary employment agencies that second workers for construction work

More information is provided by the Construction Workers’ Holiday and Severance Pay Fund (Bauarbeiter-Urlaubs- und Abfertigungskasse, BUAK) as the competent authority.

Particularity concerning the freedom to provide services

Companies established in the European Economic Area can offer their services on an unlimited, cross-border basis without a permanent branch office in Austria. The freedom to provide services also includes the right of companies to provide services through the use of their own staff in Austria. In the case of cross-border provision of services, the Austrian trade regulations must as a rule be adhered to. When conducting a business activity that is regulated in Austria, a “cross-border service notification” must be submitted to the Federal Ministry for Digital and Economic Affairs.

Responsible officers

The appointment of responsible officers pursuant to § 9 II and III of the Administrative Penal Act (Verwaltungsstrafgesetz, VStG), who are intended to assume administrative penal responsibility in the area of employment of foreign workers of a domestic company, shall become legally effective only after a written notification (ZKO 1-I) has been sent to the Tax Authority / ZKO about the appointment, including proof of the agreement (ZKO 1-Z) from the appointed person.

Legal basis: § 28a III of the AuslBG and § 9 of the Administrative Penal Act

A company headquartered abroad CAN, through the appointment of a “responsible officer” pursuant to § 24 I 1 of the LSD-BG in conjunction with § 9 II and III of the Administrative Penal Act, be assigned administrative criminal responsibility for compliance with this Federal Law. Only upon receipt of the appointment (ZKO 1-A), with a signed declaration of consent by the appointed party (ZKO 1-Z) at the Central Co-Ordinating Agency, will it become legally effective.

The Central Co-Ordinating Agency must be notified immediately of the resignation of a “responsible officer” from the company or of his/her withdrawal from the appointment (ZKO 1-W).

Central Register of Administrative Offences

Pursuant to § 72 of the Purchase Contract Awards Act , public-sector contracting authorities must base the assessment of the reliability of the bidder in particular on the information from the Central Register of Administrative Offences pursuant to § 28b of the AuslBG. Companies that apply for a public contract abroad will receive a corresponding notification from the ZKO to submit to the foreign contracting agency.

Pursuant to § 30b III of the AuslBG, the body deciding about a funding application pursuant to § 30b I must seek information from the Central Register of Administrative Offences (§ 28b V).

Liability regulations

Liability pursuant to the Employment of Foreigners Act (AusIBG)

The customer is liable for any violations committed by its immediate contractor, if it has not complied with its obligations to monitor and communicate pursuant to § 26 VI of the AuslBG. A company outsourcing in full or in part the performance of a service to another company shall request the subcontracted company, prior to the commencement of employment, to prove within one week that it has obtained the authorisations required under this Federal Law for the employed foreign workers. Unless the subcontractor complies with this request in due time, the subcontracting company shall notify without delay the Central Co-Ordinating Agency of the Federal Ministry of Finance for Control of Illegal Employment.

Liability pursuant to the Anti-Wage and Social Dumping Act (LSD-BG)

The customer shall be held liable as guarantor and payer pursuant to § 1357 of the ABGB for the entitlement of workers posted or seconded on a cross-border basis to remuneration they are entitled to receive from their employer under a law, ordinance or collective agreement, taking into account the individual classification criteria, for construction work in accordance with § 3 VI commissioned in Austria. The customer, who itself is not the contractor of the assigned construction work, is liable only if it knew about the non-payment of remuneration prior to commissioning the work, or if the customer seriously suspected this to be possible due to obvious indications and endorsed it (§ 9 of the LSD-BG).

If the general contractor has subcontracted a project or part of a project in a way that is unlawful pursuant to the provisions of the Purchase Contract Awards Act of 2006, or any other similar legal provisions or the contractual provisions, the general contractor shall, pursuant to § 1357 of the ABGB, be liable as guarantor and payer for the statutory remuneration entitlements determined by ordinance or collective agreement for the workers employed by the subcontractor to carry out the work and to which they are entitled within the scope of the agreed performance of work. The same applies to a subcontractor if it subcontracts a project or part of a project in an unlawful way (§ 10 of the LSD-BG).

Contact

Central Co-Ordinating Agency of the Federal Ministry of Finance for Control of Illegal Employment
Brehmstraße 14, A-1110 Vienna
Phone: +43 50233-554194
Fax: +43 50233-5954194
Email: post.finpol-zko@bmf.gv.at

Link to the forms

You can find all of the ZKO forms in our form database.

Transportation posting: ZKO3Trans Notification of a posting

Transport change notification: ZKO3TransAE-M Change Notification pursuant to § 19 VII of the LSD-BG

Posting: ZKO3 Form sheet(s)

Secondment: ZKO4 Form sheet(s)

Appointment of “responsible officers”: ZKO1 Form sheet(s)

Please note the information windows in the online form sheets.