BALANCING ACT

The legislator has reacted to the current labour market situation and the lack of skilled workers in shortage occupations by facilitating foreigners’ access to the labour market. This should further strengthen Austria’s position as an attractive destination for highly qualified workers from non-Member States.

The Employment of Foreign Nationals Act (AuslBG) was amended and implemented by the National Council resolution of 6 July 2022 and the 20 October 2021 Directive (EU) 2021/1883 of the European Parliament and Council on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment, and the repeal of Council Directive 2009/50/EC. The amendments came in force on 1 October 2022.

SHORTAGE OCCUPATIONS

In principle, the employment of workers from abroad requires an employment or secondment permit, which may be waived in certain cases (e.g. Red-White-Red Card, Red-White-Red Card plus, Blue Card EU, residence permit as intra-corporate transferee (ICT), residence permit plus, family members, family community with access to the labour market, permanent residence – EU). In other cases, the activity of the employee needs to be reported to the Public Employment Service (“AMS”), which must issue a confirmation of notification.

Until 1 October 2022, the employment of skilled workers in shortage occupations from a non-Member State was linked to the prerequisite that proof of relevant completed vocational training was provided and that the prescribed minimum threshold of 55 points was achieved. Until then, up to 30 points were awarded for a completed university degree, up to 25 points for a general university entrance qualification, but only up to 20 points for completed vocational training in a shortage occupation. Work experience was taken into account on a year-by-year basis and only workers under 40 years of age were given age-related points. German and English language skills also earned points. In practice, it was often difficult to achieve the minimum number of points, even though skilled personnel were objectively suitable for the shortage occupation.

Even if the general requirements will remain fundamentally unchanged, 1 October 2022 has brought about the following changes in particular:

• For completed vocational training in the shortage occupation, 30 points (instead of the previous 20) are awarded in the points scheme.
• Depending on the profession, it is no longer necessary for the applicant to prove that he/she has completed a university degree to achieve the full score.
• For professional experience appropriate to the training, points are now awarded on a semi-annual basis, so that one point is credited for every half year of professional experience (professional experience acquired in Austria is still awarded double points).
• Language skills are still taken into account. Five additional points will be awarded for special English skills if the predominant company language is English.
• A new feature is that points are awarded for workers under 50 years of age. Previously, professionals could only receive age-related points if they were under 40.

With the additional points for English skills, a total of 95 points are now possible, previously the maximum was 90 points.

EU BLUE CARD

The requirements for obtaining an EU Blue Card have also been changed significantly by the new regulation. The required minimum gross annual salary was reduced by one third to one times the average gross annual salary of full-time employees last published by Statistics Austria. For employment in a regulated profession, however, the relevant professional authorisation must be proven.

Even without a university degree, employment as a key worker is possible in certain cases if three years of relevant professional experience within the last seven years prior to the application can be proven, which is comparable to a university degree with a minimum duration of three years.

If a worker holds an EU Blue Card from another Member State, employment without a posting permit is possible in certain cases, but only if the posting does not exceed 90 days within 180 days.

If the requirements for an EU Blue Card are met and the applicant holds a Red-White-Red Card as a highly qualified person, a key worker, or as a university graduate, a labour market test is no longer required, on condition that there is no change of employer.

CORE STAFF

The amendment to the law now also privileges core staff if

• a registered regular seasonal worker has worked in the same industry for at least seven months in the previous two calendar years;
• German language skills of A2 level are proven;
• the employer offers the prospect of a permanent employment relationship and
• if the general requirements for admission to the Austrian labour market pursuant to section 4(1) AuslBG are met.

PROJECT STAFF

The amendment also introduces a new category of workers. Project workers according to section 4a AuslBG receive an employment permit for the duration of the project upon application by the employer if, beyond the general requirements of section 4 para 1 AuslBG, the workers are not temporarily employed as specialists within the meaning of section 2 para 13 no 2 AuslBG for more than six months within the framework of a project.

Overall, the amendment has brought some changes that facilitate access to the labour market in Austria for highly qualified professionals from non-Member States. However, the complex regulations of the Employment of Foreign Nationals Act are enriched with exceptions, making the jungle of the Act a little more dense. In order not to get lost here, we still recommend to seek legal advice.