Secondment of foreign artists by employers having their operating headquarters in a non-EEA state (posting)
A secondment refers to a situation where foreign companies which do not have operating headquarters in Austria post their staff to Austria to carry out a specific task. Such work is generally based on a contractual obligation, especially on a contract for services. For secondments, secondment authorisations are required, and if they exceed a period of 4 months, an employment permit, which must be applied for by the Austrian organiser. For secondments, a visa is always required, even if the posted staff members are nationals of countries which do not require a visa as tourists.
A company buys a sculpture of a Japanese artist which it wants to install outside of its corporate headquarters in Austria. For warranty reasons, it is agreed that the sculptor himself and three of his staff will mount the sculpture. The work is expected to last one week. The Austrian company must apply with the regional PES for authorisation of the secondment. Such authorisations will be granted if the remuneration which the Japanese staff receive for work done in Austria is in keeping with the collective or minimum wage agreements applicable to Austrian employees. Based on the secondment authorization, the Austrian embassy in Tokyo can then issue the required visa C for the three Japanese workers.
Foreign nationals who are posted for cultural activities in the framework of an inter-governmental cultural agreement or for ensemble guest performances at a theatre do not require a secondment authorisation or employment permit provided that the ensemble guest performance does not last longer than one week. In this case, notification by the organiser is sufficient, which must include the names, dates of birth, nationality of the foreign nationals, the nature and duration of their secondment to Austria, as well as the duration of the (project) activities, regardless of the duration of activities of the individual foreign nationals, which is to be sent to the regional PES.
For instance, a guest performance by a foreign opera in an Austrian opera house is considered an ensemble guest performance. The organiser’s notification covers the entire staff posted for such a guest performance.
Whether the activities of a foreign national qualify as employment under an intergovernmental cultural agreement must be assessed on a case-by-case basis according to the substance of such agreement.
The existing cultural agreements cover in particular scientific, pedagogical, technical and artistic staff.
Secondment of foreign artists by employers with operating headquarters in an EEA country
Companies having their operating headquarters in an EEA member state must report the secondment of foreign artists to the Central Coordination Unit (ZKO) at the Federal Ministry of Finance.
Notifications of secondment are made in implementation of Directive 96/71/EC on the posting of workers, and the fiscal police can check compliance with Austrian pay and work conditions. This is to avoid wage and social dumping.
The Central Coordination Unit will forward the notification to the PES, if the posted artists originate from the following countries:
- Bulgaria and Romania
- Third countries (not EEA members, excepting Switzerland).
The PES will issue a confirmation of posting if
- The posted worker is properly employed in the seconding state, and
- is employed according to Austrian pay and work conditions during secondment.
The PES will disallow a secondment if one of the above requirements is not met.