EHLegalUpdate – HR / Employment Law: May 2022

Red-White-Red Card Reform

In order to counter the continuously increasing labor shortage in Austria, the government has presented a reform of the Red-White-Red Card (RWR Card). Workers from third countries (i.e. outside the EU or the EEA) are to be given easier access to the Austrian labor market through more lenient criteria for obtaining a RWR card, and simplified and faster procedures. The RWR card enables third-country nationals to reside in Austria and to pursue gainful employment (sometimes with a specific company). Currently, the draft is in the review stage. A decision on the draft is expected in the summer.

In order to shorten the duration of the procedure, a service unit at the Federal Ministry for Digitalization and Economic Location, the so-called Austrian Business Agency Unit “Work in Austria”, is to be established. This unit will provide support and information for third-country nationals and companies.

1.1 Easier criteria for a RWR card

In order to obtain a RWR card, applicants from different occupational and qualification groups must achieve a certain number of points in a list of requirements (this depends on the type of RWR card desired). Due to the strict criteria, applications for RWR cards have often been rejected. In the future, language skills and professional experience in particular are to be given greater consideration:

  • The reform is intended to generally extend the validity of language certificates: In the future, certificates of German or English language skills will be valid for five years (instead of just one year at the moment). In addition, five additional points are to be awarded for English language skills for specialists in shortage occupations and “other key employees” if the company language is English. In this context, the potential employer will have to credibly demonstrate that English is the predominant language of internal and external communication in the company. In this respect, English skills will be upgraded.
  • Work experience will now generally be credited with one point per half a year, instead of two points for each full year. For example, someone with five and a half years of work experience would receive 10 points for five full years of work experience under the current system. After the reform, 11 points could be credited. In addition, in shortage occupations, apprenticeship degrees are to be placed on an equal footing with university degrees and generally valued at 30 points instead of the current 20. Further, the work experience of “other key employees” will no longer have to be “commensurate with the training”. In the future, professional experience is to be credited even if the training was completed in a different field.
  • There will also be relief for graduates. For them, the existing income limit is to be completely abolished (2022: € 2,551.50 gross per month, excluding special payments). However, the income should continue to correspond at least to the customary remuneration in that geographic area for domestic graduates with comparable work and professional experience. In the case of “other key employees”, the minimum wage is to be reduced – irrespective of age – to (at least) 50% of the ASVG maximum contribution basis.

1.2 Project staff under § 4a AuslBG

The planned § 4a AuslBG (Employment of Foreign Nationals Act) standardizes special regulations for “project employees.” Employers who employ third-country nationals for no longer than six months as specialists in the context of a project in Austria are to be granted employment permits for the duration of the project – under certain conditions. In addition to the employment permit, a corresponding visa for employment purposes is required.

1.3 RWR card for regular employees (§§ 5(6a) and 12d AuslBG)

Persons who have been employed as seasonal workers for at least three years in the last five calendar years will be able to register as “regular seasonal workers” in the future. Subsequently, they will be able to apply for a RWR card for regular workers under the following conditions:

  • Employment of at least seven months per calendar year for two calendar years in the same industry as a registered regular seasonal worker;
  • German language skills at level A2 or above; and
  • Offer of a permanent employment contract.

In this case, the labor market test will also be omitted. This regulation is intended to benefit agriculture, forestry, and tourism in particular. Seasonal businesses that have switched to year-round operations should be able to take on their regular seasonal workers as permanent employees and thus improve their position under labor law.

1.4 Implementation of the “EU Blue Card Directive”

The planned reform is also intended to implement Directive (EU) 2021/1883 on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment (“EU Blue Card Directive).

Compared to the original Blue Card Directive 2009/50/EC, the new Blue Card EU Directive further facilitates the admission of highly qualified workers from third countries and their family members. This is intended to make the EU even more attractive as a destination region in the international competition for highly qualified workers.

For example, in the future the minimum gross annual salary will be “merely” one times the average gross annual salary of full-time employees in Austria (instead of one and a half times). Key employees in information and communications technology with three years of professional experience are to be admitted to the Austrian labor market in the future even without a degree. In addition, a change of employer will be made easier: applicants will be allowed to start the new employment on principle after a waiting period of 30 days, even if the procedure has not yet been completed.

In addition, things should also get easier for third-country nationals who hold a valid EU Blue Card from another member state and who perform a business activity in Austria for a period of 90 days within 180 days. If certain conditions are met, neither a posting permit nor an employment permit will be required. Self-employment in Austria will also be permissible, in principle.


Accident insurance coverage for home office

1.1 In the lunch break with the motorcycle to the supermarket – work accident?

During his half-hour lunch break, an employee rode his motorcycle from his home address, where he worked in his “home office,” to a supermarket three kilometers away to buy a snack. The employee drove the six-minute route via side roads rather than the main roads as a result of heavy traffic. There are two supermarkets across the street from the home address, one 120 meters away (a one-minute walk) and one 500 meters away (a six-minute walk). On the way back, the motorcycle started to burn, causing the driver to suffer burns. In the opinion of the employee, this was an occupational accident, which is why he sought an injured person’s pension (OGH of 25.01.2022, 10 ObS 183/21s).

1.2 Legal basis – home office and occupational accidents

In principle, accidents are deemed to be occupational accidents if they occur in the local, temporal and causal context of the employment on which the insurance is based. In the context of work in a home office, difficulties regularly arise in distinguishing between business and private activities. Following clarification in the ASVG, accidents that occur in a temporal and causal connection with the employment at home (home office) justifying the insurance are also considered occupational accidents (§ 175(1a) ASVG). In the present case, however, the accident did not occur at home, but on the way back from the supermarket. In exceptional cases, certain accidents in connection with private journeys are also protected as occupational accidents as defined in the ASVG. The following prerequisites exist for a commuting accident in connection with the satisfaction of vital needs (§ 175(2)(7) ASVG):

  • The journey must have been made during working hours or during a work break,
  • It must have served the satisfaction of vital personal needs (vital needs), and
  • The destination of the route (or in the case of the return route: the starting point) must be either the home of the insured person or a place located in the vicinity of the place of work.

1.3 Not an occupational accident

According to the OGH, the restriction to a place “in the vicinity” should not only provide insurance coverage if the nearest restaurant is visited. However, the relevant place must generally be within walking distance of the place of work, and it must be possible to walk to and from the place of work and to eat during the break.

In the present case, the employee unnecessarily increased the risk of an accident by choosing to ride his motorcycle along side roads to a supermarket three kilometers away (instead of walking to a supermarket only one minute away). Exposure to unnecessary danger by choosing a location farther from the place of work is not covered by the statutory insurance. Likewise, the choice of the supermarket further away due to certain preferences was attributed to the uninsured, economic sphere of the employee themselves. As a result, the OGH confirmed that the incident was not an occupational accident.

–> Journeys from the home office to the nearest supermarket or restaurant to get a snack during the lunch break, as well as the return journey, are generally covered by statutory accident insurance. Employees should ensure that the supermarket or restaurant can be reached on foot within a short time. Employees should not go to supermarkets or restaurants further away solely based on personal preference.