Labor Law (Austria)

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The Austrian labor law is the set of rules that governs the rights and obligations between employers and workers in partly public, partly private agreements. It consists of an established structure of laws (e.g. Salaried Employees Act, Holiday Act), ordinances (e.g. workplace ordinance), collective agreements, works agreements and individual agreements.

Basics

As an introduction, the most important provisions or "pitfalls" should be presented at this point using a typified "employee life", while a more detailed description of the legal area follows below:

At the beginning of an employment relationship , the entrepreneur - after the company-internal creation of qualification profiles and the like - first of all places a suitable job advertisement. Here it is important to observe the provisions of the Equal Treatment Act (GlBG): Every external or internal job advertisement must be written in a non-discriminatory manner; Job advertisements may not be for a specific gender (§ 9) or with reference to a specific age group, ethnic origin, disability, religion or belief or sexual orientation (§ 23), unless this would be an "essential and decisive professional requirement" . Addressees of this provision are employers, the public employment service, employment agencies and third parties, e.g. personnel consultants. In the event of the first violation of this principle of equal treatment , the company concerned will be warned by the responsible district administrative authority; However, if that company violates this principle of equal treatment again, a fine of EUR 360.00 will be imposed.

If the potential employee was able to successfully complete the interview for him, the next step is to sign the employment contract or to justify the employment relationship. In the ideal case of “employee life”, retirement comes at the end of an employment relationship. Before this point in time, however, the employment relationship can also be terminated prematurely.

Legal sources of labor law

Labor law is anchored in different legal sources. These are generally structured in the legal system's tiered structure, which shows the scope of validity and the dependency of the production context:

Stages of the legal system:

  • European law
  • Constitutional law
  • Mandatory legal law
  • Collective agreement , statutes
  • company agreement
  • employment contract
  • Dispositive legal law
  • Instructions from the employer

European Community Law

Since Austria's accession to the European Community, the provisions of European Community law that precede domestic law or determine a framework for its design are also relevant for Austrian labor law . National law must not contradict European law; accordingly, European primary law and the ordinances and guidelines based on it are at the top of the hierarchy.

National laws

At the national level, the constitution, the laws and the ordinances based on them should be mentioned. Since labor law in legislation and enforcement is largely a matter for the federal government (Article 10, Paragraph 1, Item 11 B-VG, only the service rights of state and municipal officials and agricultural workers' law are excluded), these are federal laws. The legislature can expressly make legal regulations mandatory. Absolutely mandatory provisions cannot be changed by agreement of the parties; they can be found mainly in works constitution law and in employee protection law. Relatively mandatory provisions can be improved by subordinate provisions in favor of the employees.

Collective agreements

At the next level of the “hierarchy” is the collective agreement as an inter-company overall agreement between corporations of employees and employers that are capable of collective agreements. Collective agreements can be declared to be statutes by a federal ordinance, which extends their scope to employment relationships with employers who are not capable of collective agreements.

Works agreements

At the company level, works agreements can create binding regulations for all employees of a company as overall agreements concluded between the employer and the works council .

Employment contracts

Ultimately, the employment contract is the source of law that can only create law in those areas that are not yet mandatorily regulated by the above-mentioned higher-level legal sources.

In the relationship between collective agreements and subordinate legal sources, the principle of favorability applies . Special agreements that are not excluded from the collective agreement are only valid if they are more favorable for the employee or if the collective agreement does not contain any regulation.

Individual labor law

The employment relationship

Equal treatment

The equality of the sexes is one of the pillars of modern labor law. It is expressed by the legislature in particular in the equal treatment requirement, which obliges employers and employees to implement the fundamental aspects of human rights in their environment.

Difference between white-collar workers and blue-collar workers

The distinction is made by Section 1 (1) of the Salaried Employees Act, which standardizes which employment relationships are considered to be salaried employees. In principle, employees who carry out commercial activities, higher-level non-commercial activities or office work are considered salaried employees. Certain employees are viewed as employees because they work for lawyers, doctors, credit institutions, etc. The term “worker” is a residual term that includes all those workers who are not employees. The (historical!) Differences between these groups are getting smaller and smaller. There are bigger differences v. a. in the case of notice periods and continued remuneration.

Legal basis: Salaried Employees Act (AngG) Trade Regulations (GewO)

Special forms under labor law

Volunteer

The volunteer is a person who spends time in the company in order to acquire specialist knowledge and skills. There is no employment relationship.

Characteristics of the volunteer: No work obligation, but also no legal right to remuneration. Not tied to fixed working hours. Not incorporated into the business. No right of the employer to issue instructions (except for occupational safety)

Home workers and home workers

The legal basis is the Home Workers Act 1961 (HeimAG) for home workers. Home workers are mainly mentally challenged ( teleworking ) and are not covered by the HeimAG.

The client must report the homeworkers to the labor inspectorate when they are awarded the contract for the first time, keep a list, announce the working and delivery conditions and submit an accounting book to the labor inspectorate.

The protective measures that are standardized in the HeimAG are of particular importance. The working hours must be strictly adhered to and are controlled by means of the accounting book, and too much work may not be commissioned. The provisions of the Employee Protection Act (ASchG) must also be complied with for home workplaces (outsourced places) (hazard protection). The case law allows the labor inspectorate access to the premises in order to check the provisions of the ASchG.

Trial employment contract

see also

Usually 1 month

Establishment of the employment relationship

An employment relationship exists when an employee makes his labor available and is personally and economically dependent on the management of the employer (or his deputy) . As part of their employment relationship, employees are bound by time and place, they are also obliged to follow the instructions of their employer.

Costs for presentation

There is no legal basis for reimbursement or assumption of performance costs. Therefore, the following legal constructions based on general civil law are used:

Rights and obligations arising from the employment relationship

Employee obligations

Working time:

The area of ​​working time is generally regulated in the Working Hours Act (AZG). However, there are design options in the form of collective agreements and works agreements.

The normal working time is 40 hours per week (except for KV or BV specify other values). Working hours above these normal working hours are considered overtime. However, calculation periods are to be used.

  • For example, MA works 50 hours in the first week and only 30 hours in the next.

For part-time employees (e.g. 20 hours / week), please note:

  • Working from the 21st to the 40th hour (or KV / BV limit) is overtime but no overtime.

Flexitime requires a written company agreement or, in companies without a works council, a written individual agreement with each individual employee. Certain minimum content is required:

  1. The definition of a calculation period (so-called flextime period),
  2. the definition of a fictitious normal working time and
  3. the determination of any transferable time credits or time debts

vacation

The main legal source of vacation law is the Vacation Act 1976 (UrlG), which applies equally to blue-collar and white-collar workers. The extent of vacation is 30 days, from a period of employment of 25 years 36 days (§ 2 Abs 1 UrlG). The entitlement arises in the first 6 months of the employment relationship in relation to the length of service, from 6 months the full entitlement to vacation is due (§ 2 Paragraph 2 UrlG). Night workers receive additional vacation days.

Parental leave (overview)

In Austrian legal usage, parental leave means the free agreement of a release from the work obligation against loss of remuneration while maintaining the employment contract. In the course of development, statutory exemption claims have developed, which employees unilaterally, i.e. H. without prior agreement with the employer. The most important socio-political and practical case is parental leave (parental leave) according to the Mutterschutzgesetz (MschG) and Väterkarenzgesetz (VKG). There is also family hospice leave for the care and care of seriously ill children or dying relatives (§ 14a and § 14b Employment Contract Law Adjustment Act, AVRAG ).

On the occasion of the birth of a child, the parents have a legal right to release from employment, the legal term for which is parental leave . Since the implementation of parental leave ( Directive 96/34 / EC ), fathers have a fully independent right to parental leave. The same is true for adoptive parents.

If the eligibility requirements are met, parental leave can be claimed through a unilateral declaration of intent. Parental leave begins at the earliest after the mother's weekly protection period and ends at the latest when the child reaches the age of two (which the Austrian Administrative Court has defined as the day before the second birthday).

The parental leave can be divided twice between parents (that is a total of three parts), which must be used alternately (with the exception of a common month for the first change of care provider, which, however, shortens the total duration of the parental leave accordingly); a part must last at least two months.

Parents have protection against dismissal and dismissal during parental leave. Termination of the employment relationship is only possible with the prior consent of the Labor and Social Court.

Employer obligations

The obligation to pay

The employer has the duty to pay the employee his wages.

Termination of Employment

termination

The notice of termination serves to terminate an employment contract and is generally not to be justified. Both employees and employers can terminate the employment relationship by observing the notice period and the termination date. These are designed differently for employees and workers. If there is a works council, the employer is obliged to notify it of the termination. This must be done within 5 working days after the termination was given. If the employer does not comply with this obligation, the termination is ineffective. The works council now has the option to agree to the termination, to remain silent or to object to it. The behavior of the works council has an impact on the possibility of contesting dismissal.

The unilateral early termination

This refers to a dismissal (based on the client) or a resignation (based on the contractor). The reasons for dismissal are demonstratively regulated for salaried employees in § 27 AngG, the reasons for dismissal for workers can be found exhaustively in § 82 GewO 1859. The reasons for leaving employees can be found in § 26 AngG and for workers in § 82 a GewO 1859. Above all, the reason for dismissal of untrustworthiness (§ 27 Z 1 3rd case AngG, § 82 lit d GewO 1859) has become more and more important in recent years. In Germany in particular, the so-called minor offenses sparked a heated discussion (Nuremberg justice scandal, Maultaschen case). As a result, Austrian teaching also dealt with this topic in detail.

The amicable termination

Of course, there is also the possibility to terminate the employment contract amicably in the sense of private autonomy. Both contracting parties agree that the employment contract will be terminated. In this case, there are no deadlines or deadlines to be observed and all rights and obligations, such as severance pay claims, are retained.

Collective labor law

Works constitution law

Organization of the workforce

works Council

The works council is an organ that represents the workforce vis-à-vis the employer.

composition

The number of works council members depends on the number of employees in the company.
According to Section 50, Paragraph 1, the following are to be selected: In companies with

5 to 9 employees 1 works council member
10 to 19 employees 2 works council members
20 to 50 employees 3 works council members
51 to 100 employees 4 works council members
101 to 200 employees 5 works council members
201 to 300 employees 6 works council members
301 to 400 employees 7 works council members
401 to 900 employees 10 works council members
901 to 1000 employees 13 works council members
1001 to 1400 employees 14 works council members
1401 to 1800 employees 15 works council members
1801 to 2200 employees 16 works council members

for every further 400 employees by one more member. Fractions of 400 are counted in full.

Above all, § 40 ArbVG must be observed. This paragraph lists all important works councils and organs. For example, a central works council must be set up at company level for structured companies that form an economic unit. Furthermore, a group representative can be set up at group level, but this is not an obligation. A European works council is to be set up in accordance with § 171ff ArbVG if:

  • central management is in Austria
  • at least 150 employees are employed in at least 2 Member States
  • a total of at least 1000 employees are employed in the EU.

This fifth part of the ArbVG was implemented through the implementation of the BR Directive 1994/45 EC. After a tough struggle, this directive was amended in 2009 (directive 2009/38 EG), although it should have been reviewed by the commission in 1999.

choice

The members of the works council are elected by the workforce on the basis of the same, direct and secret voting rights in accordance with the principles of proportional representation.

Right to vote

Prerequisites for the right to vote (§ 52) are

  • all employees (home workers only if they are regularly employed),
  • Completion of the 18th year of life,
  • Employment in the company.

Passive suffrage

Prerequisites for the right to stand as a candidate (Section 53) are:

  • all workers, citizenship is irrelevant
  • Completion of the 18th year of life,
  • Has been with the company or company for at least 6 months,

Home workers and employees with a certain close relationship with the business owner or with the business owner's executive bodies (spouse, relatives) are excluded from the right to be elected.

Duration of activity

The works council lasts four years. It begins on the day of constitution or at the end of the period of activity of the previous works council, if the constitution took place before this point in time (Section 61 (1) ArbVG).

Tasks and powers of the workforce

General participation rights
Supervision right

According to § 89 ArbVG, the works council has the right to monitor compliance with the legal provisions affecting the company's employees. In particular, he has the following powers:

  • The works council is entitled to inspect the records kept by the company on the salaries of employees and the documents required to calculate these salaries, to check them and to check the payment. This also applies to other records relating to employees, the keeping of which is provided for by law;
  • the works council must monitor compliance with the collective agreements applicable to the company, the works agreements and other agreements under labor law. He must ensure that the collective agreements applicable to the company are drawn up in the company (Section 15) and the works agreements are posted or drawn up (Section 30 (1)). The same applies to legal provisions whose requirements or posting in the company are stipulated in other laws;
  • the works council is responsible for implementing and complying with the regulations on employee protection, social security, any company pension schemes including securities coverage for pension commitments (Section 11 Company Pension Act, Federal Law Gazette No. 282/1990, as amended) and professional training to monitor. For this purpose, the works council can inspect the company premises, facilities and workplaces. The business owner must immediately inform the works council of every accident at work. The works council is to be consulted for company visits in the course of official procedures that affect the interests of the workforce (Section 38) of the company (company), as well as company visits that are carried out by the bodies appointed to monitor the employee protection regulations or that are carried out with their participation. The business owner must immediately inform the works council of a scheduled negotiation and of the arrival of an official body in these cases;
  • If personnel files are kept in the company, the works council is to be allowed to inspect the employee's personnel files with the consent of the employee.
Right of intervention

Pursuant to Section 90 ArbVG, the works council has the right to apply to the owner of the company and, if necessary, to the responsible offices outside the company for appropriate measures and to request the removal of defects in all matters affecting the interests of the employees. In particular, the works council is entitled

  • To apply for measures to comply with and implement the legal provisions affecting the company's employees (Section 89);
  • To make suggestions for improving working conditions, in-company training, for the prevention of accidents and occupational diseases and for humane work design;
  • to apply for other measures in favor of the company's employees.

The company owner is obliged to listen to the works council on request in all matters that affect the interests of the company's employees.

Collective agreement

Labor dispute

literature

  • Wolfgang Brodil, Martin E. Risak, Christoph Wolf: Basic principles of labor law. 7th, revised edition, status: July 2011. LexisNexis ARD Orac, Vienna 2011, ISBN 978-3-7007-5083-3 .
  • Martin Binder: Employment Contract Law Adjustment Act. AVRAG. 2nd Edition. Manz, Vienna 2010, ISBN 978-3-214-04076-5 .
  • Karin Burger-Ehrnhofer, Bettina Stepwieser, Martina Thomasberger: Maternity Protection Act and Fathers Parental Leave Act (= laws and comments. 69). 2nd, revised edition, legal status: August 1, 2013. ÖGB-Verlag, Vienna 2013, ISBN 978-3-7035-1601-6 .
  • Michael Friedrich: § 27 (= Franz Marhold, Gerald Burgstaller, Helmut Preyer (Ed.): Commentary on the Employees Act (AngG). Lfg. 8). Manz, Vienna 2005, ISBN 3-214-08372-4 .
  • Konrad Grillberger in Hans Floretta, Karl Spielbüchler , Rudolf Strasser : Labor Law. Volume 1: Individual Labor Law. (Employment contract law). 4th edition. Manz, Vienna 1998, ISBN 3-214-04786-8 .
  • Konrad Grillberger in Günther Löschnigg (Ed.): The Employees Act. 2 volumes. 9th edition. Verlag des ÖGB, Vienna 2012, ISBN 978-3-7035-1529-3 .
  • Peter Jabornegg, Reinhard Resch, Rudolf Strasser: Labor law. Individual labor law, collective labor law. Manz, Vienna 2003, ISBN 3-214-07578-0 .
  • Gerhard Kuras (Hrsg.): Manual labor law. Including payroll & taxes & funding opportunities. Delivery 14. Manz, Vienna 2005, ISBN 3-214-10768-2 .
  • Manfred Lindmayr: Employees Act. Short comment. LexisNexis ARD Orac, Vienna 2007, ISBN 978-3-7007-3825-1 .
  • Günther Löschnigg (Ed.): Employees Act (= laws and comments. 1). 10th, revised edition. ÖGB-Verlag, Vienna 2016, ISBN 978-3-99046-160-0 .
  • Günther Löschnigg: Labor law (= laws and comments. 129). 13th, revised edition. ÖGB-Verlag, Vienna 2017, ISBN 978-3-99046-274-4 .
  • Franz Marhold, Michael Friedrich: Austrian labor law. 2nd, completely revised edition. Springer, Vienna et al. 2012, ISBN 978-3-211-99404-7 .
  • Edda Stech, Gerda Ercher-Lederer: Labor law. 40th edition, as of March 1, 2014. Linde, Vienna 2014, ISBN 978-3-7073-3037-3 .
  • Gustav Wachter (Ed.): Labor law. Collection of standards for operational practice. 20th edition, legal status: March 1, 2018. Verlag des ÖGB, Vienna 2018, ISBN 978-3-99046-311-6 .
  • English: Martin E. Risak: Labor Law in Austria. Wolters Kluwer et al., Alphen aan den Rijn et al. 2010, ISBN 978-90-411-3322-9 .

Web links

Wiktionary: Labor law  - explanations of meanings, word origins, synonyms, translations