|Opis:||The present master’s thesis deals with the construct regulation of posted workers in Austrian legal arrangement in comparison with the EU arrangements. In Austria, the scope of posted workers is arranged within the framework of the Anti-Wage and Social Dumping Act (hereinafter: LSD-BG), which establishes work conditions and employment of posted workers, control and administrative measures for monitoring the implementation of such measures as well as criminal penalties and other measures used in cases of infringement. This act represents the implementation of Directive 1996/71/EC and Directive 2014/67/EU, which represent the main measures for the construct regulation of posted workers in the EU. The Directive 1996/71/EC establishes the general regulatory legal framework for posting of workers within the EU, however, it does not coordinate the material content of mandatory provisions, needed to be taken into account during the time of posting in the host country. The content of mandatory provisions is established in accordance with the legislation of the host country. I will place the construct regulation, resulting from LSD-BG, in a broader legal framework and compare it to the arrangement resulting from EU regulations in order to assess whether Austria went beyond the indicated framework, deriving from the EU law, with the implementation of the EU legislation and set excessive restrictions on free movement of services between the Member States. In this master’s thesis, the construct is discussed in three sections, which interconnect and complement each other – the rights of posted workers; administrative requirements and control measures; and criminal penalties and safety measures.
I establish that the postings represent a complex construct and that good knowledge of the EU legislation, the legislation of the country in which the employer’s head office is located as well as the legislation of the host country is needed in order to legally and correctly implement it in practice. Due to specific and varied regulations of labour, social and tax legislation of the Member States, this sphere evokes numerous legal issues. As legal rules needed to be taken into account during the posting are frequently fragmented between various legal acts and are at the same time unclear and undefined, they can lead to many problems in regards to posting.
In this master’s thesis, I conclude that LSD-BG derives from the Directive 1996/71/EC when it comes to the implementation of rights and conditions of work and employment. The rights relating to working hours, annual holidays and health and safety at work are mainly harmonised at EU level, which is why no notable deviations of Member States regulations in respect to those rules should appear when it comes to posting of workers. The majority of problems is related to the definition of pay components for work of posted workers, as the scope of the definition of payment concept stays in jurisdiction of the Member States. More questions related to the compliance with the EU law emerge from the regulation of control measures and criminal penalties, resulting from LSD-BG. In the light of guidance coming from the Directive 2014/67/EU, it might seem that several measures of LSD-BG, such as, for example, high penalty payments, payment security measures and payment suspension measures are not proportionate to the set objective.|