Definition and classification
Disguised staff leasing exists where an assignment is declared as a contract for work or Service contract but in fact meets the features of Staff Leasing – such as being bound by instructions and integrated into the client's operation.
What legal consequences are there?
If the appropriate license is missing or the leasing is not disclosed, the contracts are void under §§ 9, 10 AÜG ; an employment relationship with the client company can come into being. On top of that come fines and possible claims for contributions. A precautionary „parachute" license no longer protects if the leasing is not disclosed.
How do you avoid disguised staff leasing?
The key lies in how the work is actually carried out: under a Werkvertrag the contractor has to work on their own responsibility and free of instructions, with a clearly delimited piece of work and their own organization. As soon as the client directs the people like its own employees, the classification tips over. Clean contracts, a clear distinction and, in case of doubt, a status determination procedure are the better route.