BUAK

Employer company

Direct payment of supplements through employers

Since 1 January 2012, employer companies have had the option to pay wage supplements directly to BUAK for the workers posted to their businesses who are subject to BUAG.

In this way, the employer is released from liability pursuant to § 14 of the Temporary Agency Work Act [Arbeitskräfteüberlassungsgesetz] (AÜG) for the supplements pursuant to BUAG.

Legal consequences

The following legal consequences ensue if the employer makes use of this option:

  • The payment made by the employer to BUAK reduces the temporary employment compensation to be paid to the temporary employment company by the amount of the supplements paid.
  • The payment has a debt-reducing effect for the employer, i.e. the employer’s liability pursuant to § 14 AÜG is reduced by the amount of the payment made to BUAK.
  • The payment by the employer is made in the temporary employment company’s favour, and thus reduces the temporary employment company’s payment obligation vis-à-vis BUAK by the amount of the payments made. The employer’s payment therefore must be specified with respect to the temporary employment company, the posted or hired out employees, the period of the posting or hiring out and the classification criteria required for determining the hourly wage provided for in the collective agreement (e.g. activity, profession).
  • BUAK provides the employer with confirmation of the release from liability pursuant to § 14 AÜG for the supplement payments made to BUAK for each employee and period of work.
  • At the same time, the temporary employment agency receives information about the payments received by BUAK on their behalf.

Liability scenarios for the employer:

The payment obligation vis-à-vis the temporary employment agency has not yet been met: The employer is liable as a guarantor pursuant to § 1355 ABGB after an unsuccessful request to the temporary employment company for the payment of supplements. The payment request to the temporary employment company can be made in court or out of court. After unsuccessful requests including a deadline for payment, the demand against both the temporary employment company and the employer can be pursued in court.

Summary of requirements for liability claim against the employer:

1. Temporary employment company has not made supplement payments that are due

2. Unsuccessful request to temporary employment company for the payment of
supplements

The payment obligation vis-à-vis the temporary employment company has already been met: The employer is liable as a so-called deficiency guarantor only when the supplement payment from the temporary employment company has become irrecoverable. This case arises when there is an unsuccessful enforcement action against the temporary employment company, or when its representatives cannot be located and debt collection proceedings initiated by the employer are therefore futile in any case.

Summary of requirements for liability claim against the employer:

Attempts by BUAK to enforce payment of supplements by the temporary employment company have been unsuccessful or are obviously futile.


Liability in case of insolvency: If insolvency proceedings (bankruptcy, settlement) are initiated against the temporary employment company, or if an insolvency filing is dismissed due to the temporary employment company’s lack of sufficient assets, the employer’s liability as a guarantor ceases if the payments are secured by the Bankruptcy Wage Continuation Act [Insolvenz-Entgeltsicherungsgesetz] (IESG) Since this requirement is always met for demands against businesses based within Austria, the possibility of a liability claim is excluded by § 14 (3) AÜG if the temporary employment company becomes insolvent.

 

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Contact

BUAK - Bauarbeiter-Urlaubs- und Abfertigungskasse
Kliebergasse 1a, 1050 Vienna

0579 579 5000
0579 579 95 0 99

kundendienst@buak.at

Mon to Thu 7.15 am to 4.00 pm
Fri 7.00 am to 1.00 pm