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‘Non-genuine’ postings, i.e. the employment of workers with their usual place of work in Austria, if the employment is exercised for an employer with its registered office outside Austria (this definition is not set out in the Posted Workers Directive, therefore ‘non-genuine’), and fictitious postings will be covered by all areas of the Austrian Construction Workers’ Leave and Severance Pay Act (Bauarbeiter-Urlaubs- und Abfertigungsgesetz).
This means employers domiciled outside of Austria have to pay surcharges for public holidays in winter (due to the frequent interruption of employment, construction workers often do not enjoy winter public holidays, e.g. 25 and 26 December, therefore employers must pay a surcharge), for the calculation of the bridging allowance as well as for severance pay.
In addition, more favourable CBA regulations will apply to long-term postings. If the posting or supply of workforce exceeds 12 months, the labour law standards laid down in the CBA will apply in full to these employment relationships, where they are more favourable than the corresponding standards in the posting country. The CBA to be applied is the one that applies to comparable employees of comparable employers at the posted employees place of work. If the employer submits a notification in German or English containing a statement of reasons (specific requirements for this are not provided for in the Directive; we assume that it would be reasonable to argue that the service could not be performed within 12 months and why), the period after which the more favourable CBA provisions apply will be increased to 18 months.
New provisions have also been introduced into the Austrian Construction Workers’ Bad Weather Compensation Act for postings or assignments lasting more than 12 months (or 18 months if a justification is provided). If an employee is posted or transferred to Austria on a long-term basis, s/he will be entitled to at least 60% of regular wages in the event of a work interruption due to bad weather which would otherwise lead to a loss of wages.
