Short-time Working

Corona-short-time working: Procedure and model agreements

At present, many companies are considering extending or (prematurely) terminating short-time work after the initial application for COVID-19 short-time work assistance. We are pleased to share an update regarding the procedure for short-time work (Status: 25.06.2020).

 

 

IN THIS ARTICLE



 THAT'S NEW

 

1. Restrictions for foreign employers regarding subsidy in Austria and registered branch status

When filing a short time work subsidy application (Antrag Kurzarbeitsbeihilfe) to the Austrian labour authority (AMS) by operations/businesses in Austria of foreign companies/employers certain preconditions need to be fulfilled to be entitled to this federal subsidy.

The short-time work allowance therefore requires that foreign entrepreneurs have a business within the meaning of the Labour Constitutional Act with a business location in Austria.

a) independent organisational unit

  • a business to be considered within the meaning of the Labour Constitution Act has to appoint a responsible person who combines operating resources and employees into a single unit and has the freedom to make decisions on day-to-day matters like coordination of employees, allocation of overtime, etc.
  • A certain personnel administration structure is also required, with proper recording of working hours, working time checks, and lost time accounting.
  • In short: there must be a minimum degree of independence how the purpose of a business in Austria is achieved through a relatively independent organisational unit.

If not all criteria are available, it is to be assumed that it is a dependent part of the business in the respective country (dependent branch), and therefore does not qualify for the subsidy.

b) registered branch

Alternatively, if there already exists a registered branch in the commercial register (which is inevitably in order to obtain a trade license to be sustainably active in Austria), it is assumed that the business is eligible for the AMS subsidy.

 

2. Submission of applications, prolongation  and entitled employers/employees

Procedure for applying for COVID-19 short-time working allowance:

  • Contact the responsible office of the AMS (by telephone or via eAMS account or e-mail)
  • Contact the responsible regional chamber of commerce to prepare and draft the recommended enterprise Corona short time work agreement
  • Written application to the AMS together with the signed Corona short time work agreement
  • Opinion on economic necessity (e.g. corona and follow-up)

Attention: Please note that according to information from the AMS, a retroactive initial application is no longer possible from 1 June 2020. New applications for short-time working must always be submitted before the start of the short-time working period from this date!

On the AMS website, new social partner agreements for initial and renewal applications with a short-time work start from 1.6.2020 (to be submitted with the short-time work application) have been published. These are to be used for initial applications from 1.6. and for extension applications from the 4th month of short-time work.

The differences to the previous agreements include the fact that the employer can, under certain conditions, order a higher working time than is generally agreed in the agreement. In future, companies will no longer have to notify the social partners of changes in working hours. The obligation to retain working hours after short-time work no longer applies with the consent of the works council (in the case of a company agreement) or the trade union (in the case of an individual agreement) or the AMS Regional Advisory Council. There is no obligation to make up for any termination during the probationary period or due to retirement.

 

Number of employees

It was clarified that the obligation of companies to maintain the workforce only applies to employees affected by short-time working. It remains to be seen to what extent the social partners will react to this change and adapt the new social partner agreements valid from 1 June 2020.

 

Prolongation of short-time work

According to the current regulations, short-time work can be extended by a further 3 months if economically necessary, but no longer than 30 September 2020.

  • For the prolongation of short-time work, a prolongation application must be submitted via the eAMS account with a new social partner agreement
  • In the course of the extension of short-time work, companies must endeavor to reduce the current vacation entitlement by three weeks. However, it is not possible for the employer to unilaterally order the leave to be taken.
  • The request for short-time work must state whether and to what extent economic difficulties continue to exist for the company.
  • Requests for prolongations can be submitted retroactively, from 1 July 2020 at the latest three weeks after the planned start of the extension. However, according to the WKO, it should be noted that there is a maximum of four calendar days between the end of the initial request and the start of the extension request.

 

Employers entitled to short-time work

All employers including private associations (including non-profit associations) are eligible. Excluded are:

  • Federal, state, local and municipal associations,
  • Political parties and
  • Other legal entities under public law.

 

Employees entitled to short-time work

All employees are eligible. Exception: marginally employed persons (geringfügig Beschäftigte). According to the information in the new application form, short-time work cannot be agreed for marginally employed persons.

  • Business executives: Members of the management are also eligible if they are insured under ASVG. However, they can also be excluded from short-time work in accordance with the model social partner agreement. This means that employed managing directors or managing directors who do not have a significant share in the company are also eligible.
  • Apprentices: Apprentices can be covered by short-time work in accordance with COVID 19 guidelines.

 

3. Vacation, time credit and quarantine

Consumption of old vacation / time credit

The new directive stipulates that not consumed holidays or existing time credits should be reduced as far as possible before short-time work is introduced. However, old holidays or existing time credits should be used during short-time working, if expressively required by the employer.

In general, the consumption of holidays or time credits cannot be ordered unilaterally, so the employer must make a serious effort, but not demonstrate any success. Therefore, if no agreement is reached between the employer and the works council/individual employees, this does not harm the employer in terms of receiving the short-time work allowance.

It is recommended that the concrete efforts/negotiations be well documented for verification purposes.

 

Leave during short-time working

Remuneration for vacation time corresponds to that before the start of short-time work. This means that there is no reduced hours allowance for leave and time off. Such times are not taken into account when determining the lost hours, that is, no fictitious lost hours are added.

Please note: The time of leave or time compensation must be taken into account when determining the average employment level during reduced working hours with the employment level before the start of reduced working hours.

 

Quarantine during short-time work

Officially ordered quarantine

The isolation in quarantine of sick, suspected or infectious persons is a precautionary measure according to the Epidemics Act.

1. Isolation of sick people

The officially ordered isolation of persons suspected of being ill or of being infected counts as another reason for prevention of employment under labour law.

The officially ordered isolation of persons suspected of being ill or infected during short-time work therefore falls within the obligation to continue to pay remuneration under the EFZG and provides for a claim for compensation by the employer under § 32 (3) of the Epidemics Act.

This means that as soon as an employee employed on short-time work has to go into self-isolation due to measures ordered by the authorities (as a person suspected of being ill or infected), he or she is entitled to full continued remuneration for this period. The employer may take recourse to the competent district administrative authority within six weeks of the discontinuation of the measure.

Therefore, no short-time working allowance is due for this period of absence.

Please note: To assert your claim, an application must be submitted to the district administrative authority within a period of six weeks.

This period begins on the day on which the official measures in whose area the action was taken are lifted.

You can find out the competence of your district administrative authority here: help.gv.at

 

2. Traffic Restrictions

According to § 24 of the Epidemic Law, the district administrative authority can issue traffic restrictions if it is necessary due to the type and extent of the occurrence of a notifiable disease (e.g. COVID-19) to protect against its further spread in the epidemic areas. Furthermore, restrictions may also be imposed on traffic with the inhabitants of such areas from outside.

In these cases, the employee's claim for continued remuneration is based on the EFZG and the employer's claim for compensation is based on § 32 (3) of the Epidemic Law (assertion at the competent district administrative authority, see above).

Therefore, no short-time working allowance is due for these periods of absence.

 

3. COVID-19 disease

Only when it is actually established that a COVID-19 disease is present (with sick leave) is there also a sick leave. The employee is then entitled to full continued remuneration according to EFZG for the sick leave.

It is still possible to receive short-time work assistance - the employer is still entitled to short-time work assistance for this period to the extent of the originally planned lost working hours for this period.

 

Voluntary quarantine

If an employee voluntarily goes into quarantine or wishes to go into quarantine without at least the suspicion of an infection, this does not justify a claim for continued payment of the remuneration. In this case, it is advisable to agree in advance with the employee on the reduction of vacation or time credits. In any case, the employee may not be absent from work or refuse to work without such an agreement if he/she fears infection.

 

4. Continued payment of fees in the event of plant closures

If a firm may no longer be entered due to an officially ordered prohibition to enter, it was unclear until the end how to deal with such measures due to the non-application of the Epidemic Law. In addition to the COVID-19 Measure Act, § 1155 ABGB now provides that measures based on the COVID-19 Measure Act, which lead to a ban or restrictions on entering companies, are also considered circumstances within the meaning of § 1155 ABGB and are to be attributed to the employer sphere. Thus, in these cases, the employer is in principle also obliged to continue to pay remuneration.

However, employees who are affected by such measures and are therefore unable to continue to perform their work are now obliged, at the employer's request, to use up holiday and time credits during this period, to the following extent:

Holiday entitlements from the current holiday year need only be used up to two weeks.
Time credits based on the conversion of monetary claims regulated by collective sources of law do not have to be used up.
In total, no more than eight weeks of holiday and time credits need to be used up.

For periods of continued remuneration under Section 1155 of the Austrian Civil Code (ABGB), short-time work support to the extent of the originally planned lost working hours continues to be available for this period.

 

5. Exemption or home office for risk groups

On 5 May 2020, the Federal Council also approved the more precise provisions for the release of employees with certain pre-existing conditions.

The basis for assessing whether someone has a particularly high risk of developing severe covid-19 disease is a recommendation of the Ministry of Health, which lists numerous hazardous situations (above all chronic underlying diseases). For COVID-19 risk assessments, this recommendation is to be announced in the form of a decree on 11 May 2020.

The 3rd Covid-19 Act created an exemption for COVID-19 risk groups. After numerous ambiguities and strong criticism, a readjustment has now been made in implementation with the 9th Covid-19 Act. Furthermore, the long-awaited definition of the general risk group has been finalised by the expert group - this should take into account serious diseases in particular and be derived from medical knowledge and, if possible, from the intake of drugs.

According to current information from the Ministry of Health, this group of people includes people with severe chronic lung diseases (e.g. with advanced stage COPD or cystic fibrosis), with advanced chronic kidney disease (e.g. people who had a kidney transplant or need dialysis), with advanced heart failure, and people who are currently receiving cancer therapy or have completed such therapy within the last 6 months.

The legislation is expected to come into force after the legislative process is completed in the course of May (status 29.04.2020)

Employees with pre-existing conditions that can significantly worsen the course of COVID-19 disease and are therefore exposed to an increased risk of infection at work are now entitled to paid leave for a limited period (provisionally until 31.05.2020, extension possible) except the person concerned can perform his or her work in the home (home office) or
the conditions for the performance of his work at the place of work can be designed by appropriate measures in such a way that infection with COVID-19 can be excluded with the greatest possible safety; this also includes measures for the journey to work. (§ 735 ASVG)

A dismissal due to the use of time off can be challenged before the Court of First Instance.

 

Procedure

In a first step, the responsible health insurance institution is responsible for identifying the risk groups by means of medication. The persons concerned are informed of this by the health insurance carrier.

The affected person must then contact (preferably by telephone) his or her attending physician. He alone is responsible for assessing the individual risk situation of the person concerned. If the person concerned is assigned to the COVID-I9 risk group, he/she must issue a certificate (COVID-19-Risk-Attest) - but the certificate must not contain a concrete diagnosis.

The Medical Association has already published a model certificate, which is intended to serve as a point of reference for physicians. The certificate must be designed in such a way that it is clearly recognizable that it is an official COVID-19 risk certificate.

However, a COVID-19 risk certificate can only be issued after the regulation has been announced and, as things stand at present, not before 11 May 2020.

If such a certificate is presented to the employer, the employer must check whether the person concerned can continue to perform his work in his home office or under adequate and sufficient protective measures at his workplace.

If it should turn out that the performance of the work is not possible either in the home office or at the previous workplace, the person concerned is entitled to paid release from work.

The exception for affected persons in the area of critical infrastructure (e.g. supermarket) provided for in the 3rd Covid-19 Act has now been abolished. This means that employees working in these sectors can also claim an exemption under the above-mentioned conditions.

 

Employer's right to compensation

The employer is entitled to reimbursement of the remuneration paid to the employee or apprentice as well as the employer's share of the social security contribution, unemployment insurance contribution and other contributions by the health insurance institution for the period of the release.

The claim for compensation must be submitted to the health insurance carrier no later than 6 weeks after the end of the leave of absence.

 

6. Assumption of employer's social security contributions from the 1st month

The employer's social security contributions are based on the (higher) employee's remuneration before the start of short-time work.

The AMS now pays the higher employer's social security contributions from the 1st month of short-time work, instead of from the 4th month, as was previously the case.

 

7. Area of validity for short-time work

The recommended short time work agreement (Sozialpartnervereinbarung) has to specify whether the entire company, branch (sites or locations) or only organisationally separate parts of an enterprise are to be covered by short-time working. This is important for determining the number of active employment agreements at the beginning of the short time-work period.

The Sozialpartnervereinbarung now provides that the reduction of working hours can be determined differently for different groups of employees. It is also possible to exclude particular group of employees. Any reduction or subsequent change of agreed working hours have to be agreed with the individual employees concerned, it may be necessary to inform the involved parties of such changes (Gewerkschaft, Wirtschaftskammer).

 

8. Payroll Accounting and final accounting of shorttime-work

For the settlement of short-time work, there is now a

-> Guide to payroll accounting including calculation examples (in German)  from the Federal Ministry of Labour, Family and Youth

and a

-> Information from the BMF on the (wage) tax treatment of COVID-19 short-time work (in German)

 

The COVID-19 short time work payroll is possible with using a settlement file. Please note that payroll accounting must be made monthly. The procedure is predefined:

Phase 1: Check prerequisites

Prerequisites for the settlement of the COVID-19 short-time work allowance are the successful submission of the application form, the social partner agreement as the basis for short-time work and a positive notification of support from the AMS regarding the approved short-time work allowance.

Phase 2: Accounting options

There are two ways to create the payroll:

1st way: AMS web application

A separate Web application is available for carrying out the settlement for COVID-19 reduced hours allowance. Here you can enter data for all relevant employees and apprentices and calculate the reduced hours allowance for each payroll run. A payroll file can then be created in CSV format. The web application can be used to create a payroll for up to 150 employees and apprentices.

2nd way: Data import or data entry with the AMS Excel project file

Alternatively, an Excel project file provided by the AMS can also be used for accounting. This variant is primarily intended for payroll accounting for a larger number of people and for companies that already know the exact procedure from short-time work cases before COVID-19. For example, data from payroll accounting programs can be imported into this Excel file.

Phase 3: Upload and send in the eAMS account for companies

For both ways out of phase 2, the CSV file must be uploaded to the e-AMS corporate account and sent to the AMS as a project-related message. Only when the message is sent is the invoice transmitted.

Please note that only approved projects are taken into account. Due to the retroactive application possibility, it will still be possible to invoice for the month of March until 28.5.2020.

You can find detailed information as well as videos in German here:

Payroll accounting short time work AMS

 

Taxation of special payments for short-time work

Control annual sixths

With the Tax Reform Act 2020 there was a significant change for the tax benefit of certain special payments (especially 13th and 14th monthly salary but also bonuses).

What is new in relation to the previous regulation is that the time of the inflow is no longer the only factor to be taken into account for the assessment of an open sixth of a year, but also the time of payment of the last withdrawal.

This means that at the end of the year or if the employment relationship is terminated during the year, the one-sixth of the year must be recalculated as a "control six-month" on the basis of the current remuneration actually paid.

When determining the control six-month may result in subsequent taxation if the current remuneration fluctuates (e.g. changes in working hours, irregular payment of overtime, long periods of sick leave, but also unemployment). Only maternity protection and parental leave periods are not affected.

Effects of short-time working

The current regulations on short-time work stipulate in the social partner agreement that the remuneration to be taken into account in calculating the special payments is the remuneration that would have been due if no short-time work had been agreed.

However, since the preferential taxation of six percent for special payments is only entitled to one-sixth of the current annual remuneration, but the original salary is reduced by 10% - 20% during short-time work, this results in a difference which would be taxable according to the standard rate.

Under the current rules, this would have to be done by means of a control calculation at the end of the year ("control sixth").

The government has announced an adjustment of the regulation for employees affected by short-time work. However, it is currently still open in which form the regulation will be adjusted. We will inform you as soon as the details are available.

 

Final settlement of COVID-19 short-time working allowance

The implementation report serves as the final account and must be submitted to the AMS by the 28th of the following month after the retention period has expired.

 

9. Early discontuination of short-time work

In the course of the repeal of the stay-at-home order and the reopening of shops, many companies are faced with the question of premature discontuination of short-time work.

Early discontuination is possible in principle, as this is explicitly set out in the social partner agreement. The decision must be communicated immediately in writing to the social partners and the AMS, although in companies with a works council the works council's signature is also required.

Furthermore, the employees must be informed immediately so that they can prepare for a resumption of full employment.

What does this mean for the payroll accounting of the short-time working allowance?

A so-called implementation report must also be submitted to the AMS in the last month of short-time working. In addition to maintaining the number of employees, this report also checks that the maximum number of hours lost during the entire period of short-time work is observed. A further implementation report must be submitted after an agreed retention period by the 28th of the month following the end of the retention period.

 

Note:

Think carefully before you end short-time work prematurely, even if you were allowed to reopen your business. A positive funding notification means that you have already been assured a certain amount of funding. If you now end short-time work prematurely, this amount will no longer be available to you in full. However, if the situation should deteriorate again in the next few weeks and new restrictions are imposed, you are covered, do not need to submit a new application and can register lost working hours again immediately.

 

10. Staggered net replacement rate, examples of use and checklist

In contrast to the previous part-time working arrangements, the Corona short-time working scheme provides for a staggered net salary replacement rate of

  • 80% if the gross remuneration before short-time work exceeds € 2,685.00 (capped up to the maximum social security contribution basis of € 5,370.00 gross)
  • 85% for gross remunerations between € 1.700,00 and € 2.685,00
  • 90% for gross remunerations of up to € 1.700,00

 

Determination of gross pay during short-time work

The new regulation is intended to eliminate disadvantages of the current rounding rules when calculating short-time working pay. The calculation of the gross remuneration based on the net replacement rate is now carried out in the same way as the flat rates of the AMS (even above the maximum contribution basis).

The amendment creates the basis for a gross remuneration table, from which the short-time working salaries for employees can be calculated in steps of 5 euros.

The table will probably be published next week in the form of a BMAFJ regulation.

 

Examples of use for the staggered net salary replacement rate

The following simplified examples serve to illustrate the calculation methodology for the net salary replacement:

1. An employee receives gross remuneration of € 2,000 (net approx. € 1,500) before part-time work is agreed. The working time is reduced by 50%.

Since the gross remuneration is between € 1,700 and € 2,000, the employee receives € 1,275 net during reduced work-time (equals 85% of the "old" net remuneration). The subsequent adapted gross remuneration will be approximately € 1,585.

As a result the new gross remuneration of € 1,585 will be € 585 more than the 50% working time (50% of gross € 2,000 is € 1,000). The AMS reimburses the employer for these € 585 in additional costs.

 

2. An employee receives gross remuneration of € 2,800 (net approx. €1,908) before part-time work is agreed. The working time is reduced by 90%.

Since the gross remuneration is above € 2,865, the employee receives a net amount of € 1,526 during part-time work (this is 80% of the "old" net remuneration). The subsequent adapted gross remuneration will be approximately € 2,082.

As a result, the new gross remuneration of € 2,082 will be € 1,802 more than the 10% working time (10% of gross € 2,800 is 280). The AMS reimburses the employer for these € 1,802 in additional costs.

 

3. An employee receives gross remuneration of € 1,600 (net approx. € 1,285) before part-time work is agreed. The working time is reduced by 90%.

Since the gross remuneration is less than € 1,700, the employee receives € 1,156 net during part-time work (that is 90% of the "old" net pay). The subsequent adapted gross remuneration will be approximately € 1,397.

As a result, the new gross remuneration of € 1,397 will be € 1,237 more than the 10% working time (10% of € 1,600 gross is € 160). The AMS reimburses the employer for these € 1,273 in additional costs.

A calculation tool for the AMS cost reimbursement can be found at AMS.

calculation tool AMS

 

Checklist

Enclosed you will find a checklist with additional current information per employee and for the company, which we use for calculation and support in the application process as well as for further optimization.

Employees

Social Insurance Number

Normal working hours

Extent of short-time working (% reduction in hours)

Duration of short-time work

Status of credit (overtime) hours as of beginning of short-time work period

Holiday year (calendar/working year)

Holiday from previous years

Vacation status current year

Earliest possible start of short-time work (enterprise/branch level)

Planned holidays during short-time work

Current gross remuneration (13 weeks average)

Individual agreement with each participating employee for work-time reduction

Total number of employees as of beginning of short-time work period

Information on terminations before beginning of short-time work period

Existance of an eAMS account

 

Do you have more questions about short-time work? Our experts Martin Schmidt and Christoph Schmidl will be happy to assist you.