Table of contents
2. conclusion of contract
3. scope of services
4. rights and obligations of the transferor
5. rights and obligations of the employer
7. termination of the contract
9. final provisions
1.1. These General Terms and Conditions (GTC) regulate all legal relationships between WE Work Personal KG as a temporary employment agency, hereinafter referred to as the Employer, and the Employing Company, hereinafter referred to as the Employer.
1.2. The Transferor and the Employer agree that these General Terms and Conditions shall apply not only to the first legal transaction, but also expressly to all further transactions, such as, in particular, subsequent and additional orders. These GTC and other provisions of the individual contract shall continue to apply even if the Transferor provides labor beyond an originally agreed or intended end date or if the request for labor was made verbally.
1.3. The transferor declares that he wants to conclude contracts only on the basis of these GTC. Any contractual conditions of the Employer are expressly rejected. These shall only apply if they are expressly agreed in writing. If, by way of exception, the validity of other contractual conditions is agreed, their provisions shall apply only to the extent that they do not conflict with the provisions of these GTC. Agreements made in framework agreements shall take precedence over these GTC insofar as they conflict with the provisions of these GTC; otherwise, the framework agreements shall be supplemented by these GTC unless expressly agreed otherwise.
1.4. The Employer declares by signing an offer of the Transferor that it agrees with the content of these GTC. The Employer acknowledges that the Transferor shall issue these General Terms and Conditions again at the Employer’s request at any time. If the transferor has a website, these GTC can be accessed and printed out there.
1.5. Amendments and supplements to these GTC and the individual contract (collateral agreements) must be made in writing to be legally effective. Declarations by fax comply with the written form requirement, but not communications by e-mail. This written form requirement may only be waived in writing.
1.6. Workers of the transferor shall not be authorized to make any declaration of will or knowledge for the Employer, nor to collect.
2. conclusion of contract
2.1. Offers of the transferor are subject to change. The contract shall be concluded only after the transferor has sent a written confirmation of the order or – without signing these documents – by commencing the employment of the transferred workers.
2.2. The beginning and duration of the work assignment, the qualification of the temporary workers and the place of the work assignment shall be determined exclusively by the contract documents signed by both parties or by the order confirmation of the transferor.
3. scope of services
3.1. The Transferor shall employ labor for the purpose of providing labor to third parties and shall undertake the provision of labor to the Employer in its own and independent organization. The assignment shall be made exclusively on the basis of these General Terms and Conditions and in compliance with the statutory provisions, in particular the Austrian Personnel Leasing Act (AÜG) and the applicable collective bargaining agreements.
3.2. The object of labor leasing is the provision of labor, not the provision of specific services. In particular, the transferor does not owe any work success whatsoever.
3.3. The Transferor shall be entitled to replace at any time any employees listed in the Contract Documents or already provided by the Transferor by other persons of equal value.
4. rights and obligations of the transferor
4.1. The transferor shall guarantee that the workers provided have given their consent to the transfer to third parties and are ready to work. The transferor shall owe a special qualification of the labor only if such qualification has been expressly agreed upon. In the absence of a specific agreement, an average qualification shall be deemed to have been agreed.
4.2. The transferor shall only guarantee the qualification of the leased employees to the extent that he can verify this by inspecting the certificates of the leased employees.
4.3. The hiring party shall verify the existence of a valid qualification certificate (driver’s license, forklift license, crane license, …) in accordance with the agreed qualification prior to hiring out the employee, but not during the time of hiring out.
4.4. If there is a deficiency in the qualification of the leased employee for which the transferor is responsible and the Employer demands improvement in good time by the end of the trial work period, this shall be provided by replacing the employee concerned within a reasonable period. No costs shall be charged to the Employer in this case.
4.5. The transferor shall be entitled to enter the place of employment at any time in order to verify compliance with the obligations of the Employer and to obtain the necessary information.
5. rights and obligations of the employer
5.1. Gem. § Section 6 (1) of the Austrian Temporary Employment Act (AÜG), the Employer shall be deemed to be the employer within the meaning of the employee protection provisions for the duration of the employment in the Employer’s business.
5.2. The Employer is obligated to comply with all statutory provisions, in particular the Employee Protection Act, the Temporary Employment of Labor Act, the Employment of Foreign Nationals Act and the Working Hours Act, as amended from time to time. If the Employer violates statutory provisions, the Employer shall indemnify and hold harmless the Transferor for any resulting disadvantages.
5.3. The Employer shall have the duty to instruct, instruct and supervise the leased employees. This person will train and instruct the workers in the use of the equipment and machinery. Written evidence of any necessary training or instruction must be submitted to the transferor at the latter’s request and all necessary information must be provided to the transferor.
5.4. The Employer is obligated to provide the necessary instruction, education and hazard prevention measures and to make available to the leased workers the necessary proper and safe tools, equipment, work materials and occupational safety equipment. The costs of any medical examinations required by law or for operational reasons shall be borne by the Employer.
5.5. The Employer is obliged to continuously check the qualifications of the leased employee if he/she is provided with equipment (in particular trucks, cars, cranes, forklifts, etc.) for the work.
5.6. The Employer is obliged to check the qualifications of the leased employee immediately after the start of the leasing. If the Employer determines that the temporary worker does not possess the agreed qualifications, this circumstance shall be reported to the Employer in writing within 5 hours after the start of work of the temporary worker (“trial work”), stating the exact deficiencies found, otherwise the existence of the agreed claims shall be deemed acknowledged. due to warranty and compensation for damages are excluded.
5.7. The Employer shall provide evidence of any lack of qualification.
5.8. The Employer shall use the leased employees only in accordance with the qualifications, if any, agreed upon in the individual agreement and in the field of activity provided for therein. He will not instruct the respective workers on activities for which they are not qualified.
5.9. In the event that the Employer provides further training to leased employees and the latter thereby obtain a higher qualification, the Employer shall inform the Transferor thereof without delay. The transferor is entitled – unless a separate agreement has been made – to adjust the agreed remuneration in accordance with the acquired qualification from the time of the higher qualification. If the Employer fails to provide such notification, it shall indemnify and hold harmless the Transferor for any and all disadvantages arising therefrom.
5.10. During the work assignment, the Employer shall provide the temporary workers with lockable boxes and rooms for their personal belongings, in particular clothing, and for any tools and other equipment provided by the Employer.
5.11. If the temporary workers are not deployed for reasons for which the Employer is not responsible, the Employer shall be obliged to pay the full remuneration. This shall also apply in the event of non-utilization of the leased employees due to an unavoidable event.
5.12. Labor is not provided to companies affected by strikes or lockouts on the basis of Section 9 of the German Personnel Leasing Act (AÜG). The Employer shall therefore notify the Transferor of such circumstances without delay.
5.13. Upon conclusion of the temporary employment contract, the Employer shall inform the Transferor about the collective bargaining agreement applicable in the Employer’s enterprise, any company agreements and written remuneration agreements with the Employer’s workforce, piecework or premium work and working time regulations. The Employer shall immediately notify the Transferor of any changes in these circumstances during the period of cooperation. The Employer shall be liable for the accuracy of this information.
5.14. The Employer shall immediately notify the Transferor in writing of any changes in the company name, address, legal form or other relevant information.
5.15. If a worker is absent for any reason whatsoever or does not appear at the agreed place of work, the Employer shall inform the Transferor thereof immediately. In such cases, the transferor will ensure that a worker is made available as soon as possible.
5.16. Warranty claims and claims for damages by the Employer must be asserted in court within three months of the termination of the provision of labor, in the event of any other loss.
6.1. The amount of the respective fee results from the offer signed by the Employer or from the order confirmation of the Transferor. If an order is placed without a prior offer by the transferor, the transferor may claim that fee which corresponds to its usual conditions or a reasonable remuneration.
6.2. If the remuneration provisions for the leased employees change after the order has been placed due to statutory or collective agreement adjustments, the Transferor shall be entitled to increase the agreed fee to the same extent as the increase in remuneration. In the event that workers are employed beyond an agreed or anticipated end date, the fee provisions shall also apply beyond this date.
6.3. The fee stated in the offer or the order confirmation is owed plus the statutory value added tax. Unless otherwise agreed, the transferor is entitled to weekly settlement. Upon receipt of the invoice, the fee shall be transferred to the transferor’s account immediately without any deductions and free of charges.
6.4. If the Employer does not object to the invoice in writing within 10 days of receipt, the invoice shall be deemed to have been approved and accepted with regard to the hours charged therein and the amount of the fee.
6.5. In the event of default in payment, interest on arrears of 12% p.a. shall be agreed. In the event of default in payment, the Employer shall reimburse the Transferor for all reasonable and necessary expenses incurred as a result, such as in particular costs for reminders, collection attempts and any court or out-of-court legal fees.
6.6. The Employer shall not be entitled to set off any claims or demands against the Employer against the fee for the provision of the labor, unless the Employer’s claims have been determined by a court or acknowledged in writing by the Employer. There shall be no right of retention to the fee owed for the supply of labor.
6.7. The basis for the settlement of the fee shall be the time sheets (work sheets) to be signed by the Employer at least once a week. If the Employer does not fulfill its obligation to issue the time sheets, the Transferor shall be entitled, but not obligated, to have the time sheets bindingly signed by the Employer’s customer – insofar as the assignment is with a third party. The hours worked shall be legally established by the signing of the time sheets by the Employer or the Client of the Employer. If the Employer’s customer does not sign the time sheets either, the Transferor shall be entitled to use its own records as a basis for billing. The burden of proving that the hours listed in the transferor’s records were not actually worked shall be on the Employer.
6.8. The Transferor shall charge for its performance on the basis of working time of 38.5 hours per week or 168 hours per month, irrespective of whether the Employer makes use of the work performance of the temporary employee during this period.
7. termination of the contract
7.1. In the case of an indefinite assignment of workers, the Employer shall terminate the contract in writing prior to the last day of the respective worker’s assignment in compliance with the following deadlines (hereinafter referred to as “Termination Deadlines”). The receipt by the transferor of a notification of the last day of use is sufficient and decisive.
- The notice period is five working days, provided that the employee is not hired out to the Employer for more than three months. If the employee is deployed by the Employer for more than three months, the notice period shall be extended to fourteen days so that the Transferor can fulfill its statutory obligation to notify the temporary worker of the end of the deployment in accordance with Section 12 (6) AÜG. The deregistration deadline can only be waived if the termination of the assignment is due to objectively unforeseeable events (e.g. flood, fire, etc).
- In cases where the conduct of the temporary worker would justify dismissal without notice (§§ 1162 ff ABGB, §§ 25 ff AngG), notice of termination may be given with twenty-four hours’ notice. The reasons for the deregistration shall be specified by the Employer in a written statement and transmitted to the Transferor by e-mail. At the request of the Employer, the Transferor shall immediately provide a replacement for such worker.
7.2. In the event that the Employer terminates the employment of the leased employee without complying with the notice periods set forth in Section 7.1. defer, the transferor shall nevertheless charge on the basis of a working time of 38.5 hours per week until the end of the period.
7.3. If the employment of a temporary employee ends within five working days after the beginning of the temporary employment due to the temporary employee’s own termination of employment, the hiring party shall not be entitled to compensation for the training period of the departed temporary employee in the amount of up to twenty hours.
7.4. In the event of termination of the employment of the employee as a result of the employee’s own resignation or for other reasons relating to the person or conduct of the employee, the Employer further undertakes to provide an adequate replacement without delay at the request of the Employer. This obligation of the transferor exists even if the worker is unplannedly absent for more than 3 working days per month, for whatever reason.
7.5. The transferor is entitled to terminate the contract prematurely, even without observing deadlines or dates, if there is an important reason. Good cause shall be deemed to exist in particular if
a) the Employer is more than seven days in arrears with a payment to which the Employer is obligated vis-à-vis the Transferor, despite a reminder;
b) the Employer violates statutory or contractual provisions despite being requested to do so;
c) the Employer fails to fulfill its management, supervisory or welfare obligations towards the leased workers;
d) composition or bankruptcy proceedings are instituted against the assets of the Employer or the institution of such proceedings is rejected for lack of cost recovery;
(e) a strike or lockout occurs at the Employer’s plant; or
f) the services of the transferor are not rendered due to force majeure, illness or accident of one or more workers.
7.6. Notwithstanding the right to terminate the contract with immediate effect, the Transferor shall be released from any obligation to perform in the event of default of payment by the Employer and shall be entitled to immediately recall the leased employees at the expense of the Employer.
7.7. If the contract is terminated prematurely for reasons within the control of the Employer, or if the employees are recalled by the Transferor for such a reason, the Employer shall not be entitled to assert any claims against the Transferor, in particular under warranty or for damages.
8.1. The transferor shall not be liable for any damage caused to the Employer or third parties by the temporary workers. The transferor shall not be liable for loss, theft or damage to tools, drawings, samples, devices and other items provided. This applies in particular if money, securities, or other valuable or sensitive items are entrusted to the labor provided.
8.2. Before operating any vehicle or equipment for which a permit or authorization is required, the Employer shall verify the existence of the appropriate permits or authorizations. If the Employer fails to carry out this check, claims of any kind against the Transferor shall be excluded.
8.3. In the event of dismissal or replacement of employees, any claims whatsoever against the transferor are excluded. If the Employer is responsible for the premature termination of the contract or dismissal of employees, the Employer shall be liable to the Transferor for any resulting disadvantages. In such cases, the transferor shall pay the remuneration until the originally intended or agreed end of the transfer.
8.4. The Transferor shall not be liable for failure to perform or delay in performance of work, in particular in the event of force majeure, illness or accident of the hired-out worker. The Employer shall not be liable for consequential damage and financial loss, loss of production caused by leased employees and for penalty obligations which the Employer has entered into vis-à-vis its customer.
8.5. Furthermore, liability is limited to gross negligence and intent on the part of the transferor.
8.6. The Employer shall be liable to the Transferor for all disadvantages suffered by the latter due to a breach of a contractual obligation to be performed by the Employer.
9. final provisions
9.1. Should individual provisions of these GTC or the individual agreement be or become invalid or unenforceable, this shall not affect the validity of the remaining provisions. Instead of the invalid or unenforceable provision, the contracting parties agree on the validity of a valid provision which corresponds as far as possible to the economic purpose of the original provision.
9.2. The place of jurisdiction is agreed to be the Commercial Court of Vienna. Notwithstanding the foregoing, the Transferor shall also be entitled to bring an action at the Employer’s general place of jurisdiction.
9.3. The Employer and the Transferor agree on the application of Austrian substantive law, even if the place of employment is abroad. The referral rules of private international law are excluded.
9.4. The place of performance of the labor supply and payment of the Employer shall be the registered office of the Transferor.