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Since January, 1st 2015 Austrian employers are audited more strictly regarding employees, who are employed in Austria. This intensification is valid for periods from January,1st 2015 (i.e. former periods are not controlled) and affects all salary components according to Austrian labour law. In comparison to former regulations, where only payments below the collective agreement and not paying the base pay for overtime has been audited, this regulation also affects all compensation, which the employee is entitled to receive based on law, act, or collective agreement. Such compensations are for example:
The definition of „salary components“ does not include reimbursements (e.g. kilometer allowance, refund for cost of traveling), as well as benefits from employers, which are – according to §49 Abs. 3 ASVG – free from liability to social security contribution (e.g. dirty work premium). In addition, for all salary components, which were agreed on in a works council agreement or an employment contract (e.g. functionality allowance) this regulation doesn’t apply.
What are the consequences?
The height of the fine is based on the number of employees, as well as the fact, whether this is a case of recurrence. The penalty is defined as following:
A continuous (uninterrupted) underpayment, which affects several payment periods, is seen as one administrative offence and will not be treated as a case of recurrence.
Which possibilities do I have, if an employee is underpaid?
Based on the actions taken by the employer the consequences might differ:
1. You as an employer notice that an employee is underpaid. If you pay the difference between the actual payment and payment which should have been paid, and this happens prior to a notice from the regulatory bodies, you won’t be punished as it is seen as active repentance.
2. If the regulatory bodies already determined the underpayment, they will not press charges, if:
a. the employer pays the employee the due payments within the period of time set by the authorities
b. the underpayment can be seen as minor
c. the fault of the employer doesn’t exceed slight negligence
3. If the second point does not apply, but the employer settles the payment this will be also considered in mitigation
Finally, it should be noticed that the underpayment is seen as a continuing offence. It will be only “finished” if the difference is paid (i.e. the difference between underpayment and minimum salary for all periods will be settled). Neither terminating the employment, nor an abrupt correct payment “protects” the employer from a notice or penalties.