Skip to main content

Tag: Labour Market Service

Is personell leasing in Austria possible with a red-white-red card?

The employment of third-country nationals in Austria is generally only possible after a work permit has been issued by the Public Employment Service . Can such an employment permit also be issued for personell leasing?

What is the issue?

In the case of personell leasing, an employer (transferor) makes its employees available to another employer (hirer) for the performance of work. While the employment contract is concluded between the transferor and the employee, the employee is actually deployed by the hirer.

The leased employees provide their services to the employer’s customers, they are integrated into the employer’s operations and all the same protective measures must be taken as for the employer’s own employees. Temporary workers may not be discriminated against and are entitled to appropriate remuneration in line with local practice. This is at least as much as the collective agreement of the employing company provides for a comparable activity of comparable permanent employees.

It is also permissible for lease personell from abroad to be transferred to Austria. However, such employees must also be treated in accordance with the minimum standards applicable in Austria with regard to pay, holidays, notice periods, working hours, etc. A transfer from the EEA is generally not subject to authorisation but an official permit is required for transfers from other countries.

Can an employee from a third country be employed in Austria through personell leasing?

The Aliens Employment Act expressly stipulates that an employment permit may only be issued if an employer will employ a worker in a position in his own company. The personell lease is therefore expressly excluded.

An exception exists in the event that the employer has a special permit for the transfer of labour from abroad to Austria. In this case, an employment permit can also be issued in the case of a cross-border supply of labour. However, such a special permit may only be issued if this is absolutely necessary for labour market policy and economic reasons, if the workers are only available through labour leasing and if this does not endanger the wage and working conditions of domestic employees.

Is there a red-white-red card for personell leasing?

As the requirements for the issue of an employment permit must also be met when applying for a Red-White-Red Card (i.e. a residence permit combined with an employment permit), the employer must also employ the third-country national worker in a workplace in his own company. The hiring out of labour in conjunction with a Red-White-Red Card, an EU Blue Card or as a dependent artist is therefore not permitted. Only a Red-White-Red Card Plus or a permanent residence permit provide unrestricted access to the Austrian labour market.

Red-White-Red Card: Cooperation between Immigration Authority and Labour Market Service

How do the Immigration Service and the Labor Market Service work together when applying for a Red-White-Red – Card?

Luana is an Albanian citizen and studies at the Vienna University of Economics and Business Administration. As she does not receive any financial support from home, Luana is forced to work while studying. She makes full use of the maximum permissible working time of 20 hours per week on the basis of her residence permit as a student. However, Luana’s success in her studies suffers from her intensive professional activity and at the latest when she only just reaches the 16 ECTS per academic year required for the extension of her residence permit, she decides to take a temporary break from her studies in order to work full time for a while and save enough so that she can devote herself exclusively to her studies in one or two years.

Luana is now thinking about how she can secure her stay in Austria permanently, even if she does not continue her studies. A friend who works as an accountant for a tax consultant tells Luana that payroll accountants are currently in great demand on the labour market and that with such a job one can obtain a Red-White-Red card as a skilled worker in a shortage occupation. To become a payroll accountant, Luana has to attend a demanding course, but a degree is not required for such a job.

Luana applies to her friend’s tax consultancy and immediately receives an offer in which the company agrees to pay for Luana’s payroll course if she agrees to work for the company for at least two years after successfully completing the training.

Luana agrees to this arrangement, successfully completes the course as a payroll accountant and the associated examination and now only needs to obtain a red-white-red card before she can start in her new job.

Competence of the authorities in issuing the Red-White-Red Card

The special feature of the Red-White-Red Card is that the applicant is granted both a residence permit and an employment permit with only one document and by only one authority. However, this (unfortunately) does not mean that only one authority will actually deal with an application.

Applications for a Red-White-Red Card must be submitted to the competent settlement and residence authority. The authority first checks whether the general requirements for the issuance of a residence title are met and whether there may be reasons why a residence title may not be issued.

If the general requirements for issuing a residence title are met and there are no obstacles to issuing such a residence title, the competent settlement and residence authority shall forward the application to the regional office of the Labour Market Service responsible for the employer’s place of business.

The regional office of the Labour Market Service then only checks whether the specific admission requirements for the Red-White-Red Card applied for are met.

After hearing the regional advisory board of the Labour Market Service (administrative bodies of the Labour Market Service consisting of representatives of employees, employers and the Labour Market Service ), the Labour Market Service has to confirm within four weeks to the competent settlement and residence authority whether the admission requirements are met so that the latter can subsequently issue the Red-White-Red Card applied for.

If the admission requirements are not fulfilled, however, the corresponding rejection is not made by the settlement and residence authority, but by the Labour Market Service itself, which does not send the negative decision directly to the applicant, but forwards it to the settlement and residence authority.

What does this mean for Luana’s application – which authority decides?

Even if the application for a Red-White-Red Card is only submitted to one authority and the residence title applied for can also only be issued by one authority, a negative decision can be made by two different authorities, namely by the settlement and residence authority as well as by the Labour Market Service. In both cases, it is possible to appeal against a rejection decision within four weeks of the notification of the decision. However, there is an essential difference in the administrative court to which the corresponding appeal is to be addressed. The regional administrative court of the respective province (Bundesland) in which the authority is located decides against decisions of the settlement and residence authority. In the case of a dismissive decision by the Labour Market Service, the Federal Administrative Court, which has branch offices in several cities in Austria, decides in all cases on an appeal against a decision.

Fortunately, this question does not concern Luana, because her application for a Red-White-Red Card as a skilled worker in a shortage occupation was decided positively and she was granted the residence permit she applied for, so that she can finally start in her new job.