Employing Australian workers in Germany
The following observations relate exclusively to German law questions regarding the employment of Australians in Germany. Questions regarding the selfemployment of Australian citizens in Germany are not addressed. The fundamental goal of the relevant German laws is to regulate migration into the German employment market. Thus, speaking generally, it is difficult for low-qualified workers to migrate to Germany. In contrast, highly-qualified executive workers in commerce and science are admitted fairly readily into the employment market if they can demonstrate that they have an appropriate offer of employment.
The employment of Australian citizens in Germany is always conditional on the holding of a residence permit. Residence permits for employment are primarily issued in accordance with section 18 and the following sections of the Residence Act (Aufenthaltsgesetzes (AufenthG)) and the Employment Ordinance (Beschäftigungsverordnung (BeschV)).
In principle, the local Foreigners’ Registration Office closest to the planned place of work in Germany is responsible for issuing the residence permit. If necessary, this Office will also obtain consent from the German Federal Employment Agency (Bundesagentur für Arbeit (BA)). Because Australia is one of Germany’s “Best Friends”, Australian citizens are permitted to travel to Germany without a visa and to apply for a residence permit from within Germany. If this occurs then the residency of the applicant is deemed to be valid for as long as it takes the Foreigners’ Registration Office to make a decision on the visa application (s 81(3) of the AufenthG). However, it is generally better to apply for the residence permit earlier from the home country. The visa process can generally be concluded quicker and the employment can then be taken up immediately in Germany following arrival. Visa applications by Australian citizens in Germany often lead to processing delays.
In addition, a residence permit that permits employment can essentially only be issued under sections 18(2) and 39(1) of the AufenthG if the Federal Employment Agency has provided its consent. The pre-requisites for this consent are governed by subsections 39(2) and (3) of the AufenthG. Exceptions arise particularly under the BeschV.
2. Consent of the Federal Employment Agency
a. Priority review
The Federal Employment Agency can provide consent if the employment applied for will not have a detrimental effect on the German employment market and no preferred German or foreign workers are available (referred to as a priority check). Preferred workers are specifically German workers and those given equivalent treatment, namely citizens of Switzerland, the European Union and the Euro-pean Economic Area. The employer must demonstrate in this regard that it has made an effort over a reasonable period of time to find preferred workers and that it has been unsuccessful. The priority check does not apply for senior employees and specialists (s 4 of the BeschV), professions requiring qualification (s 6 of the BeschV), inhouse trainee and further training positions (s 8 of the BeschV), the international exchange of staff (s 10 of the BeschV) and household staff of em-ployees posted abroad (s 13 of the BeschV). It may also not apply if the employer would like to employ a special particular individual for specific, objective and factually justified reasons (to be explained on a case by case basis).
If the priority check does not apply under these provisions, then the Federal Employment Agency is obliged to provide its consent as long as the job review is successful. If the job review is not successful, the Federal Employment Agency has a right to consent.
b. Job review
In addition, the planned employment conditions, particularly the remuneration and the working hours, cannot be less favourable than the conditions for comparable German employees (referred to as the job review). The review takes place by reference to the specific, individual offer of employ-ment, which must be provided to the Federal Employment Agency under s 18(5) of the AufenthG. Therefore it is prudent to carefully develop an appropriate job description ahead of time and to submit it with the application. The job review likewise does not apply in certain cases, such as with highly qualified staff, managerial staff, academic staff, graduates from German universities or when the employment follows a previous period of employment or lengthier period of prior residence in Germany.
c. Characteristics of employment
Different conditions apply in respect of the migration of a self-employed person. To determine whether a person is self-employed, several factors are taken into account including whether there is personal dependence on an employer, the degree to which the employer can direct the way in which work is to be performed, the integration of the person with the business, the necessity of cooperation with other persons, the subordination to other persons and the form of remuneration. Again, it is advisable to carefully develop the job description taking these points into account.
3. Conditions for occupations that do not require consent
Even in cases where the consent of the Federal Employment Agency is not required, the employee still needs a residence permit. It is easier to obtain a residence permit if the person falls under one of the following categories:
a. Highly qualified persons, i.e. executives in commerce and science, managerial staff, specialists and persons with a university degree, can obtain a settlement permit (s 19 of the AufenthG) or an EU Blue Card (s 19a of the AufenthG).
b. A person with a foreign university degree that is comparable to a German university degree can also obtain a residence permit for up to six months in order to seek employment for which they are qualified, if their living costs are secured. Thus they do not need to demonstrate that they have a job before travelling to Germany.
c. No consent is required to issue residence permits to executive employees for employment in managerial positions. Consent is required to issue a residence permit to senior employees and specialists, but a priority check is not required.
4. Simplification of procedure
a. Deemed consent, s 36(2) of the BeschV
According to s 36(2) of the BeschV, where consent is required under the criteria set out above, it is deemed to be provided if the Federal Employment Agency does not make a decision within a period of two weeks. This period begins with the submission of the complete set of application documents by the Foreigners’ Registration Office to the Federal Employment Agency. However, if the documents are not sufficient then the deemed consent can be overridden.
b. Pre-approval, s 36(3) of the BeschV
The employer can also cause the Federal Employment Agency to conduct its review before the visa application has been submitted. Depending on the type and scope of the documents submitted, either the entire consent procedure can be brought forward or simply a review of the employment marketrelated conditions can be done in advance. This review is conducted in Germany, if necessary by local authorised representatives onsite. It generally leads to a significant acceleration of the process; the consent is provided directly to the employer or the authorised representatives.
5. Special case: EU Blue Card
The Highly Qualified Directive was implemented which included the EU Blue Card. This was supposed to introduce a common residence permit for highly qualified persons at the EU level. The EU Blue Card allows citizens of countries outside the EU who have a university degree or a comparable qualification to obtain a residence permit for the purpose of employment that corresponds with their qualification. When issued for the first time, a residence permit is issued for a maximum of four years.
The conditions are (only) a degree from a German, recognised or comparable foreign university, an employment contract or a binding offer of employment, and a proven gross salary of at least €52,000.00 (€40,560.00 for natural scientists, mathematicians, engineers, doctors and IT specialists).
After 33 months the holders of an EU Blue Card have the opportunity to obtain a settlement permit.
6. Family members, ss 29 et seq. of the AufenthG
Spouses of foreign employees can obtain a residence permit if they were already married when the employee received the residence permit and the spouse can communicate in German in a simple manner. If the marriage only takes place after the residence permit has been issued to the employee, then there are stricter conditions and limitations. Unmarried minor children will likewise receive a residence permit. If they are already 16 years of age or older then stricter conditions apply, in particular they must be fluent in German. Spouses and minor children of the holders of an EU Blue Card likewise have the right to a residence permit, however the spouse and the minor children (after reaching 16 years of age) do not need to demonstrate any knowledge of German.
Disclaimer: Please note that the content of this leaflet is intended only to provide a general overview on matters of interest. It is not intended to be comprehensive, nor does it constitute legal advice. Please seek professional advice from a lawyer in respect of your particular individual circumstances before acting or relying on any of the content of this leaflet.