New Law on Hiring-Out of Labour
→ Hans Georg Laimer
→ Martin Huger
Based on directive 2008/104/EC, the Austrian hiring-out of labour law will be amended (RV 1903 d.B. XXIV. GP). According to the directive, the national law should have been implemented by 5 December 2011. After a first failed attempt in February 2012 to implement the directive effective 1 July 2012, the implementation will now finally take place from 1 January 2013.
Furthermore, the new law on hiring-out of labour will not only implement the directive but will also stipulate further regulations for temporary work. An overview of the most important amendments follows.
Leased employees (überlassene Arbeitskräfte) will enjoy the same protection against discrimination as permanent employees of the user company (Beschäftiger). The equal treatment and equal status of leased employees will be explicitly regulated within the Austrian Hiring-Out of Labour Act (Arbeitskräfteüberlassungsgesetz). This will prevent circumvention of equal treatment laws, such as the Equal Treatment Act (Gleichbehandlungsgesetz), because of the given triangular relationship: leased employee – user company – temporary placement agency (Überlasser). Thus, it will be possible for leased employees to claim entitlements based on equal treatment laws directly against the user company. Leased employees will also have access to the amenities and collective facilities in the user company (eg, canteen, child-care facilities, transport services, etc). Leased employees will also be remunerated the same as permanent employees.
Additionally, leased employees will be entitled to company pensions after more than four years of assignment to the same user company, if a pension fund agreement (Pensionskassenvereinbarung) or a corporate group life insurance (betriebliche Kollektivlebensversicherung) exists in the user company. After the assignment in the user company, the leased employee will be entitled to a fictitious vested amount (fiktiver Unverfallbarkeitsbetrag), calculated on the same basis as the vested amount for permanent employees. This entitlement will not, however, exist for direct company pension commitments (direkte Leistungszusagen) provided by the user company.
If the Austrian law is more favourable for the leased employees, cross-border leased employees will be equated with permanent employees, independent of any applicable foreign law, with regard to holiday, remuneration, working time, continued payment, rules on termination and termination compensation.
An assignment will be allowed only if an agreement that includes at least 13 in the law listed provisions is concluded between the temporary placement agency and the leased employee. Before an assignment begins, the temporary placement agency will be obliged to inform the leased employee of several circumstances at the user company. If the assignment lasted at least three months, the temporary placement agency generally will be obliged to inform the leased employee of the end of the assignment at least 14 days in advance.
Once a year, the temporary placement agency will be obliged to electronically transmit several types of data about the assignments of the last year (1 July until 30 June) by the end of July. If the data is not transmitted within two months after the transmission is due, the failed transmission will be punished with a fine of up to EUR 2,000. However, this amendment will be effective only from 1 January 2014.
Social and training fund
To support unassigned or unemployed leased employees, a social and training fund will be established. Temporary placement agencies with a business licence for the assignment of leased employees will have to pay a contribution for every assigned leased employee per month into the fund. The contribution will be 0.25% in 2013, 0.35% in 2014, 0.6% in 2015 and 0.8% from 2016 on of the contribution basis (Beitragsgrundlage) according to the Austrian General Insurance Act (Allgemeines Sozialversicherungsgesetz). Until 31 December 2016 this contribution need only be paid for leased blue collar workers.
Increase of administrative fines
Administrative fines within the Hiring-Out of Labour Act will be increased by 40%. Administrative fines for a cross-border assignment of leased employees will also be adjusted in accordance with the administrative fines for cross-border postings.
The information obligation under the Austrian Employee Protection Act (Arbeitnehmerschutzgesetz) between the temporary placement agency and the user company on the one hand and the temporary placement agency and the leased employee on the other hand will have to be verifiable and in writing. An infringement of this obligation may lead to administrative fines of up to EUR 14,530.
The amendment provides for increased administrative fines and new and further information and reporting obligations for the temporary placement agency and the user company. Moreover, a new contribution into a social and training fund for leased employees will be implemented to support unassigned or unemployed leased employees. Based on directive 2008/104/EC, the equal treatment of leased employees will be regulated by law. Leased employees will even be entitled to company pension commitments in the user company under certain conditions and after a certain time.