General terms and conditions of temporary employment / issue: February 2015

1.    Preamble

1)    The "General terms and conditions of temporary employment of Binder Industrieanlagenbau GesmbH" apply exclu-sively to the employment of temporary workers in accordance with the AÜG [law on temporary employment].
2)    The terms and conditions of the agency only apply if they have also been expressly accepted in writing by the em-ployer on an individual basis. If documents issued by the agency refer to the agency's terms and conditions then this does not mean that these terms and conditions have been accepted, also on a retrospective basis, by the employer.
3)    A precondition for the use of temporary workers is certification of the agency in accordance with SCC/SCP.

2.    Terminology

1)    Employer = customer
    (For the company name and address see framework order).
2)    Agency = supplier
    The legal entity obligated to deliver the services in accordance with the order.
3)    Order/framework order = agreement between the employer and the agency regarding the services to be delivered by the agency.
4)    Temporary worker = Temporary agency worker
    Employee of the agency.

3.    Legal regulations

The supplier confirms that he is aware of and complies with all legal regulations relevant to the object of the contractual relationship, in particular the AÜG, the law on the employment of foreign nationals, the relevant taxation and social insurance provisions, in particular the salary and social dumping prevention law, etc. He also confirms that he will indemnify the customer and hold the same harmless in the event of any violations of the legal provisions.

4.    Contractual basis

The framework order forms the basis for the contract, together with these general terms and conditions of temporary em-ployment.
The project-specific conditions and requirements, such as qualifications, place of deployment, working hours, specific tasks, documents/verifications, are set out in detail in the respective personnel request.

5.    Personnel request

The personnel request takes place exclusively via the persons cited in the price sheet.

6.    Qualifications

It is essential to comply with the qualifications ordered or requested. The personnel shall be selected by the agency in ac-cordance with the requirements cited in the respective request and the conditions of the framework order.

1)    Assistants (H)
    … are temporary workers without a training qualification; however, they must possess basic skills and practical ex-perience in the required sphere of activities (e.g. a pipework assistant must exhibit experience in the field of pipe laying and an electrical assistant must possess experience in the electrical sector). No "lateral entrants" are accepted, unless this has been specifically agreed in advance with the personnel request.
However, this qualification also includes fitters or welders who do not / only barely meet with the requested qualifica-tion as a specialist worker. Following information to this effect to the agency, downgrading from the respective quali-fication to assistant shall take place.

2)    Fitters (M)
… must possess a training qualification (certificate of apprenticeship, etc.) and practical experience appropriate for the requirement. The fitter must be capable of independently performing the works on the building site (e.g. electri-cian, machine fitter, pipe installer, container constructor, crane driver, equipment operator, etc.). Proof of qualifica-tions must be provided in German or in translated and certified form, otherwise proofs of qualification shall not be recognised as specialist worker verification; classification as an assistant shall take place.

3)    Welders (S)
… are temporary workers with valid welding certificates. Prior to starting work it is essential to present the original version of the current valid welding certificate and appropriate verification of health-related suitability for work (welding fumes - poss. nickel and chrome suitability - depending on the welding process) to the personnel planning department. A prerequisite for new welders is that they complete a welding skills test with us and pass this before starting work.

4)    Foreman (VA)
In addition to the relevant specialist skills and knowledge, the foreman must manage at least 3 employees on the building site. A foreman is specifically requested as such in the written personnel request.

The following applies in equal measure to all qualifications (some exceptions for assistants):
a)    Professional qualification;
b)    Proven training in the respective vocation, per the details in the request;
c)    Comprehensive, multi-year experience in the required field of work;
d)    Independent work;
e)    Faultless reputation, disciplined behaviour, flexibility, willingness, dependability;
f)    Good knowledge of German.
g)    The agency must be capable of presenting the valid original welding certificate for the temporary welder supplied
    to the personnel planning department within two days.

Welding skills test:
Welders must pass a welding skills test in our factory in Kapfenstein or Zwentendorf before they are permitted to weld on the building site. A flat rate of EUR 200 plus VAT shall be charged to the agency for any failed welding test, or this sum shall be automatically deducted from the next invoice.

Welding certificates:
All of the costs relating to welding certificates are borne by the agency as a general rule.

7.    Work performance

The employer is responsible for dividing up work and coordinating the temporary workers.
The employer is entitled to utilise temporary workers for alternative work if required on a case-by-case basis.

8.    Industrial health & safety

1)    Temporary works are subject to controls, accident prevention and other provisions of the employer applicable on the building site, and are required to receive documented instruction from the employer prior to starting their work.
2)    To ensure efficient implementation of the safety provisions, the agency shall conduct periodic meetings with the safety officer of the employer, in order to apply common experience for the improvement of industrial safety. The respective measures, such as safety programmes and training, first-aid courses, notifications regarding a failure to comply with safety provisions, associated penalties and accident statistics are implemented on a mutual basis.
3)    The agency shall provide one trained first-aider for every 10 temporary workers.
4)    The agency shall ensure that the temporary workers depart for work in a timely manner when assigned to sites further afield, in order that they arrive calmly at the workplace.
5)    Any costs arising due to a failure to comply with the safety provisions shall be borne by the agency.
6)    A complete ban on drugs and alcohol applies on the employer's site. Personnel who arrive at work under the influence of alcohol or other impairing substances shall be rejected.
7)    Safety training sessions and safety instruction primarily serve to ensure personal health and safety, and shall be deliv-ered at the cost of the agency.

9.    Duties of the agency

1)    The agency is obligated to supply the employer in a timely manner with temporary workers who have been carefully selected and assessed for the requisite vocational qualifications in accordance with the request. The agency shall be liable for personal injury and damage to property that arises for any reason due to an infringement of their selection duties.
2)    The agency is required to take out appropriate liability insurance for the temporary workers.
3)    The agency is obligated to verify the required (recurrent) occupational health checks to the employer free of charge. Assessments of each temporary worker's suitability for work in noisy areas must be conducted and the results pre-sented on request. The agency is required to verify the current health-related suitability of their temporary workers in accordance with the stipulated standards and the respective work.
4)    The agency undertakes to comply with the equal opportunities act and the principle of equality, as well as the compli-ance guidelines of the employer, and hereby confirms knowledge of these.
5)    The agency undertakes to pay his temporary workers an appropriate, customary or collectively agreed salary and to deduct the statutory social security charges and taxes in a timely and correct manner.
6)    The agency undertakes to correctly register his temporary workers in the respective country of deployment (e.g: in Austria  to the ZKO office of the BMF).
7)    The agency undertakes to refrain from poaching personnel of the employer, as well as personnel of any competitors of the agency who are working for the customer.
8)    The agency undertakes to refrain from removing or otherwise utilising any personnel deployed with the customer without the prior written agreement of the customer. A failure to comply shall result in a contract penalty of EUR 5,000 per case and person.

10.     Working hours

1)    The personnel shall be required to work shifts (various shift models, night shift work, etc.), fortnightly work, overtime hours and additional work as necessary. The precise working hours model shall be set out by the building site man-agement of the customer.
2)    The weekly working hours are determined according to the respective building site regulations and are usually 50 hours per week.
3)    Weekly working hours (working days) are deemed to be Monday to Saturday from 06:00 to 20:00 hours. 50% over-time shall only be paid during these hours once the 50th hour of work has been completed, and 100% overtime shall be paid between 20:00 and 06:00 hours, and on Sundays and public holidays.
4)    Night work supplements are included in the hourly rates, although any shift supplements are to be billed for sepa-rately.
5)    The working hours law in the country of deployment takes precedence. Public holidays are the statutory public holi-days in the country of deployment.

11.     Further documents to be supplied

On request by the employer, the agency shall present the requested certificates or other forms of verification free of charge.

The agency shall provide the personnel planning department of the employer with the following documents directly after contractual conclusion:

1)    The valid permit for temporary worker transfer and an up-to-date extract from the commercial register
2)    Verification of liability insurance cover through presentation of the insurance policy with specification of the amount of cover for personal injury, damage to property, assets and operations
3)    SCP/SCC certificates of the agency
4)    Creditworthiness information (self-information from KSV or a similar authorised organisation)

And prior to starting work, the following documents:
5)    In case of the use of foreign temporary workers, their valid permits in accordance with aliens legislation
6)    The current clearance certificate from the tax office and health insurers on a monthly basis
7)    A fully completed transfer and evidence sheet, signed by the agency and the deployed temporary worker, containing up-to-date personal details. If the required transfer and evidence sheet is not provided, a flat rate charge of EUR 50 / person shall be applied
8)    All documents, occupational health certificates and proofs of qualification required per the qualifications requested, e.g. original welding certificates, copy of passport, copy of crane licences and similar in German
9)    Documents/details of the temporary worker for the acquisition of a permit to stay and work/registration requirement (security pass). The temporary worker must additionally carry originals of the documents in points 5 and 10, and pre-sent these to the employer's representatives and/or assessment bodies on request. If temporary workers are sent onto the building site without the requisite documents then they shall be rejected immediately without remuneration and the agency shall bear any costs and penalties that arise accordingly
10)    Proof of social insurance cover for the temporary worker by means of the A1 form or a health insurance card (E card)
11)    A failure to comply with the aforementioned criteria on the part of the agency entitles the employer to terminate the contract without notice.

12.     Personnel returns

The employer is entitled to return personnel at any time, whereby the employer is not required to provide any grounds for doing so and no notice period applies. The employer shall endeavour to observe a notice period of three days, although this is not mandatory.

13.     Personnel replacement

1)    The employer is entitled to demand a premature and immediate replacement of temporary workers on the following grounds:
a)    Insufficient qualifications or a deficient language skills
b)    Causing malicious or negligent damages
c)    Absence from the workplace without excuse, or late arrival at work
d)    Turning up at work under the influence of alcohol or drugs
e)    Personal misconduct
f)    Violation of the customs and manners of the country of deployment
g)    A failure of the agency to meet with contractual or legal obligations
h)    A failure to satisfy the generally applicable or building site-specific safety regulations
i)    Safety equipment or work clothing that does not satisfy safety regulations
j)    An incapacity to work due to sickness/accident

2)    On request by the employer, the agency shall make a suitable replacement worker available, whereby the travel costs for replacing the temporary worker shall be borne by the agency.
3)    If the worker is justifiably returned prematurely on the aforementioned grounds within three days of starting work (excluding the day of travel), the agency shall bear all costs arising in this regard.

14.     Special duties of the agency

1)    The agency shall instruct his temporary workers on the general health and safety provisions before their work starts with the employer.
2)    Provision of the prescribed work clothing and personal protective equipment (PPE) such as work, rain and winter clothing, gloves, safety shoes, helmet, welding helmet (for welders), protective goggles and similar. For deployment in hot operations, as well as the steel/oil/plastics/chemical industries, it is essential to use the prescribed accident pre-vention equipment in a flame-retardant version. Following prior agreement, work clothing (work jacket and trousers, winter jacket) must be purchased from the employer in accordance with the latest price list.
3)    The agency shall ensure that their personnel at the place of deployment are not recognisable as temporary workers through the application of promotional or company logos to the work clothing.
4)    Daily transport to and from the accommodation and the building site.
5)    Payment of expenses.
6)    Medical care (also dental treatment), hospital stays, costs of medication and similar.
7)    Conclusion of accident insurance cover (in addition, repatriation cover with work abroad).
8)    Repatriation of remains in case of death.
9)    Provision of manual tools.
10)    Provision of accommodation and expenses at the place of deployment.

The aforementioned services and costs are included in the hourly rates.

15.     Sickness, accident, holiday:

1)    If the temporary worker is unable to work due to sickness or an accident, no payments shall be made to the agency. Accidents must be reported immediately to the manager responsible at the place of work. If reports are submitted later on, such events shall not be considered accidents in the work place. In case of an accident, the employer shall generate an accident report. In general terms, a failure to turn up at work requires that a message be sent to the building site manager responsible by 08:00 hours on the same day.
2)    Holiday can only be taken in agreement with the employer's building site manager. No remuneration shall be paid for holiday times or any other absences.

16.     Tools and equipment

1)    The employer shall provide the temporary worker with the tools/equipment (with the exception of hand-held tools) required for the work.
2)    The temporary worker shall handle the tools/equipment carefully, according to his duty of care. The temporary worker and the agency are liable for any damage or destruction of the tools/equipment provided.
3)    The tools/equipment must be stored carefully and safeguarded against theft. Any theft must be reported to the em-ployer immediately.
4)    Once the temporary worker's activity has come to an end, he must immediately return all tools/equipment provided to him to the employer in a faultless condition.
5)    Any welding stamps that are not correctly returned shall result in a contract penalty of EUR 200 being charged to the agency.

17.     Hourly rates

1)    The hourly rates agreed in the framework order apply, plus the respective statutory rate of VAT.
2)    The hourly rates include all personal, material and other costs, such as wages and ancillary wage costs, reference sup-plements, travel costs and times, interim trips home, accommodation, expenses, travel to work, all supplements and surcharges (such as bonuses for dirty work, work at heights, work in tunnels, blasting work, hardship allowances, and similar), taxes, social security deductions and insurances, other deductions, rest-from-work periods, as well as all charges and costs arising in conjunction with compliance with all official and other allowances, the provision of documents (incl. proof of compliance with laws/regulations) for the authorities, protective measures, insurances and similar.
3)    The period and scope of validity are set out in the framework order.

18.     Billing

1)    The basis for remuneration per the qualifications is the actual work at the deployment site.
2)    Billing shall take place monthly in arrears, on the basis of an invoice submitted by the agency.
3)    The contents of the agency invoice must be clearly set out and correct in terms of facts and figures. The invoice must also satisfy the legal regulations and contain the following information:
a)    The full order number of the customer;
b)    The VAT number of the agency and the employer;
c)    The building site and project name;
d)    The name and qualifications of the temporary worker;
e)    The time frame and deployment of the temporary worker.
4)    The basis for the invoice is the signed or electronically generated time sheet of the employer.
5)    Billing shall take place exclusively on the basis of the actual hours worked, excluding time required for snacks and lunches, as well as preparation and training times.
6)     A failure to comply with a prerequisite of this paragraph will result in the invoice being discounted, the invoice amount shall not fall payable and the employer shall not be in payment arrears as a result of non-payment. The em-ployer shall inform the agency of this and return the incorrect invoice.

19.     Payment

1)    Payment shall take place in accordance with the stipulations in the framework order. Unless otherwise agreed in the framework order, the payment period shall be 21 days with 3% early payment discount or 45 days net after receipt of the invoice.
2)    A precondition for all payment demands of the agency falling due payable is the monthly submission of the most re-cent valid clearance certificate from the health insurer and tax office responsible for the agency.
3)    If the agency does not meet with these billing obligations and the general terms and conditions, in particular by failing to present the confirmation per point 2 or through failure to satisfy the salary entitlements and social security contributions specified in § 10 AÜG, the employer has the right of retention of an appropriate or reflective amount.
4)    The payment period commences on the date of receipt of a correct invoice (incoming post stamp) by the employer.

20.     Taxes, duties and fees

1)    Strict compliance with the deduction of taxes, social security contributions and duties is essential!
2)    All social security contributions, taxes, other duties and charges that arise domestically and abroad in conjunction with the use of the temporary worker shall be borne by the agency. The temporary worker working in the country of deployment is subject to the income tax and withholding tax of the country of deployment.
3)    The agency is independent within the framework of taxation law and is obligated to implement the timely and correct deduction of personal/income/withholding tax and other duties of its temporary workers.
4)    Proof of the payment of taxes and duties with a period of deployment in excess of 183 days within a single financial year/calendar year/time period of 12 months must be provided to the employer without request. This regulation is ap-plicable in accordance with the respective double taxation agreement (DTA) that has been concluded between the country of deployment and the home country (centre of life interests according to the DTA) in which the employee resides.
5)    Furthermore, the agency also confirms that it is taxable without limitation and that it is a business entity in accordance with VAT law.
6)    According to the DTA relief ordinance, temporary worker transfers by a foreign temporary worker agency are subject to the retention of 20% withholding tax if no valid exemption certificate has been supplied (issued by the tax office Bruck/Eisenstadt/Oberwart).

21.     Termination of contract by the employer

1)    The employer is entitled to expel the temporary worker from the site of deployment with immediate effect if good reason exists. In this case, the employer can demand an immediate replacement by the agency. Any costs arising due to the lack of temporary worker shall be borne by the agency.
2)    In case of a failure to pay customary remuneration, statutory social security contributions and taxes, the employer is entitled to terminate the contractual relationship with the agency immediately.
22.     Liability of the employer

The employer's liability for damages due to minor negligence is excluded, unless this results in personal injury or manda-tory liability exists on the part of the employer.

23.     Confidentiality

The agency and its temporary workers undertake to treat as strictly confidential all information, in particular knowledge pertaining to the pertinent job. This confidentiality obligation also remains intact after the job or assignment has come to an end.

24.     Miscellaneous

1)    Any invalidity of parts of these general terms and conditions of temporary employment shall not affect the validity of the remaining conditions. The contracting parties undertake to agree a provision in place of the invalid condition, which economically and legally reflects the original intentions insofar as possible.
2)    Ancillary agreements, supplements and amendments to these general terms and conditions of temporary employment must be in writing to be legally valid.
3)    If the documents cited under point 11 "Further documents to be supplied" are not submitted by the agency in a timely manner then a contract penalty of € 500 shall be charged per temporary worker.
4)    The agency expressly declares that it has met with the control obligations applicable to it at the respective location of deployment in relation to the work of any foreign personnel employed by it or by its subcontractors, in accor-dance with the law on the employment of foreign nationals in its current valid version.     
The agency is required to verify compliance with these control obligations prior to starting work, through the seam-less submission of the requisite documents to the employer unprompted at or by fax to +43 2277/2901-51). If the employer should incur costs (criminal charges by authorities, etc.) due to the illegal employment of a temporary staff member (either at home or abroad), these shall be passed on to the agency plus a 10% handling fee. Furthermore, if the employer is convicted of illegal employ-ment as a result of personnel supplied by the agency, a contract penalty of  € 5,000.00 per employee is hereby agreed.

25.     Force majeure

1)    Events of force majeure are exclusively deemed to be fire, storm, war and riots with a direct effect on the place of de-ployment.
2)    The affected performance obligations remain dormant as long as a contracting partner is prevent from fulfilling their contractual obligations due to force majeure. Each contracting partner shall bear his own costs as arising due to events of force majeure.
3)    The employer shall not be liable to the agency for the adverse effects of force majeure on contractual fulfilment.

26.     Law and place of jurisdiction

All legal disputes arising from the supply of temporary workers are subject to Austrian material law. The place of juris-diction is St. Pölten or Tulln.