The admission of third country nationals to the Austrian labour market as paid-employees is almost exhaustively regulated in the Ausländerbeschäftigungsgesetz (AuslBG, Aliens Employment Act) of 1975,  revised in a comprehensive way in 2002. The principle of this law is stipulated in section 3  which states that third country nationals may only be employed if they hold a work permit. There are three different kinds of work permit: the restricted work permit, the general work permit and the employment authorization.

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The admission of third country nationals to the Austrian labour market as paid-employees is almost exhaustively regulated in the Ausländerbeschäftigungsgesetz (AuslBG, Aliens Employment Act) of 1975,  revised in a comprehensive way in 2002. The principle of this law is stipulated in section 3  which states that third country nationals may only be employed if they hold a work permit. There are three different kinds of work permit: the restricted work permit, the general work permit and the employment authorization.

Some groups of persons do not fall under the scope of this law and may take up employment without holding a work permit: people with recognized refugee status, diplomats and staff of international organizations, spiritual advisors, shipping crew, foreign journalists, professors under certain circumstances, participants in EU-training programs, spouses and children of Austrians, if they hold a residence permit, and EEA nationals, artists and their support staff who stay for no more than three days, persons who come for vocational training, interns and volunteers, who do not stay longer than three month.

Beschäftigungsbewilligung (restricted work permit).

This permit may be granted if the situation of the labor market allows for the absorption of additional foreign labour. The future employer during the first year of stay must apply for the permit. This means that the employee is strictly limited to the initially defined work place. The conditions of eligibility are inter alia:

- The alien must hold a residence permit, allowing employment

- Absence of past cases of illegal employment (neither on the part of the employer nor of the third country national)

- Registration for social security

- Wages and employment conditions which are comparable to those of other employees of the company.

Applications for renewal of the restricted work permit must be filed before the permit expires. If the application is filed, the new restricted work permit is no longer dependent on a residence authorization.

The Arbeitsmarktservice (Labor Market Service) has to attach to each permit a condition that the third country national must not be employed under worse conditions than a comparable domestic/EU worker in the same company, and that in the case of dismissal, third country nationals will be dismissed first, section 8 para. 1 and 2.

The general precondition for issuing a restricted work permit is that the labor market is able to absorb more foreign workers. The Arbeitsmarktservice has strictly to enforce the priority of domestic/EU and “integrated” work force. Therefore section 4b contains a strict hierarchy of privileged groups, which reads as follows:

- Austrian/EU/EEA nationals, recognized refugees

- Holders of an unrestricted work permit

- Third country nationals receiving unemployment or similar benefits

- Third country nationals who were employed in Austria for three years and whose claim to unemployment benefits is exhausted, if they are registered as employment seekers

- Third country nationals who have been living legally in Austria for at least three years and who have to support a family

- Aliens that have been in Austria for more than five years and who have a permanent residence permit

- Aliens who have not lived in Austria for five years for whom there are significant social or humanitarian grounds (such as victims of domestic violence) and who hold a permanent residence permit;

- Former asylum seekers who have been awarded preliminary authorization to stay as per art 15 of the Law on Asylum, as they may not be deported for humanitarian reasons, and who have been legally living in Austria for more than two years.

If the previous requirements of sections fulfilled and:

- The Regionalbeirat (regional advisory board of the labor market service) unanimously agrees on issuing the restricted work permit, or

- The employment is imperative on especially important grounds, or

- section 18 AuslBG or section 9 Aliens Act is fulfilled

a restricted work permit may be issued. This is generally only the case for certain highly qualified key persons or trained personnel in the health and welfare sector.

Sicherungsbescheinigung, (official promise to grant a work permit)

This permit constitutes an official promise by the Arbeitsmarktservice that a restricted work permit will be granted, if certain conditions are fulfilled. The procedures are in general similar to the ones applicable to the restricted work permit. In general an official promise is valid for 26 weeks, but it may be prolonged. However, this certificate does not replace the restricted work permit. As soon as the third country national enters the country with a valid residence permit, the employer has to request a restricted work permit.

Arbeitserlaubnis (general work permit)

The rationale of this rather new instrument is to grant relative freedom of movement within the labor market to the holders of the permit. Thus an employee is not compelled to endure poor work conditions, in order to stay in the country.

Those persons, who have worked legally within the last 14 months for at least 52 weeks. Para. 1 No. 1 to 5 sets out a number of areas of employment that do not count for the waiting period, e.g. seasonal work, artistic work, internships etc. The general work permit is quota-free. It may be issued for a maximum of two years. The permit may be used for any employment in each of the Länder for which the permit is valid. If the third country national wants to move to a different Land, he or she has to apply for a new general work permit.

The third country national must be employed according to the relevant provisions concerning salaries, employment conditions and social insurance. Furthermore he or she must not be employed under worse conditions than those comparable to a domestic worker who works for the same company. The employer has to pass on all the relevant information to the competent office of the Arbeitsmarktservice.

Befreiungsschein (employment authorization)

The most secure status for a dependent employee is the holding of employment authorization. The holder of this permit has the same rights as Austrians/EU nationals in relation to access to employment. The permit is valid in the whole country. An employment authorization is issued for five years and can be renewed under the conditions of section 15a. The following persons are entitled to this authorization:

- Third country nationals who have been working in Austria legally for at least five years during the last eight years

- Spouses who have been married to Austrians for five years

- Persons below the age of 19 years who have spent more than half their life in Austria and who have completed an Austrian education

Entsendebewilligung (special allowance)

Special rules apply if a foreign company without headquarters in Austria sends a foreigner to work in Austria. This person needs a special allowance, which may be issued for a maximum of four months. Such an authorization is not necessary for very short assignments such as conferences, performances etc. For longer periods of employment a restricted work permit is needed.

While the general Austrian dual system for residence and work permits remained untouched by the reform of 2002, since January 2003 key personnel needs to address only one authority in order to obtain a combined residence and work permit. The Foreigners‘ Employment Act as revised in 2002 provides for a special procedure for the admission of employed key personnel (section 12 AuslBG).

The residence authority is in charge of accepting and dealing with first time applications for admission of key employees, submitted by the future employer . The form asks for information about the job, salary, special qualification or training and certificates. In principle first-time applications have to be submitted while the applicant for (self-) employment is still abroad. Exceptions are provided for those who are entitled to enter Austria as tourists without requiring a visa. After examining the requirements according to the aliens act, the residence authority refers the application to the Arbeitsmarktservice, which is required to give an assessment within 3 weeks on whether the person’s planned employment complies with the definition for „key personnel“.

In the Austrian legal system there are no provisions which explicitly provide for non discrimination on the basis of ethnicity or race. Nevertheless the justice system has developed a principle of non-discrimination in the field of employment. If workers are treated arbitrarily or differently on grounds that have no objective connection to the employment field, civil courts consider that as a breach of this principle. Judges can also find provisions of collective agreements discriminatory and therefore null and void. The employer also has the obligation to take care of, protect his/her employees against harassment and insult by fellows employees (Fürsorgepflicht) and has her/himself to abstain from such acts.  Nevertheless, discriminatory practices, especially at point of recruitment, are widely reported by human rights organizations. Such practices appear to concern mainly foreigners, but also Austrian nationals of immigrant background. Although the AuslBG prohibits employment of foreigners at rates of remuneration and under conditions of work worse than those stipulated for workers in the country, these do not appear to observers to provide adequate legal protection and sanctions against all discriminatory practices in employment.

Analysis provided by: Antonella C. Attardo PhD (History of Law), Italy.

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