Personal holiday

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The personal holiday , legally a unilateral start of the holiday , is a special holiday day in Austria .

It was introduced in 2019 after a decision of the European Court of Justice  (ECJ) called a Good Friday ruling and can be exercised unilaterally by the employee.

background

In Austria, Good Friday was only a public holiday for members of the Evangelical Churches  (AB and HB, Lutherans and Reformed), the Old Catholic and the Evangelical-Methodist Church , because it is the most important ecclesiastical festival of these denominations. These religious minorities in otherwise predominantly Catholic Austria had one more public holiday than the 13 generally applicable church dates . Those are based - as far as the Republic of Austria is concerned - primarily on the Concordat with the Holy See of 1934 . Other public holidays, including the aforementioned Good Friday, are stipulated in the collective agreements that are agreed between the social partners (mainly the employer and employee representatives).

In January 2019, the European Court of Justice in Luxembourg ruled that this regulation violated the principle of non-discrimination based on religion and was therefore inadmissible.

The Good Friday judgment of the ECJ

With the support of the Chamber of Labor , a non-denominational employee had sued who had to work on Good Friday, but, unlike the colleagues benefiting from the Good Friday regulation, had not received a holiday bonus. The Vienna Higher Regional Court had previously granted the man a corresponding claim, against which the employer had  appealed to the Supreme Court (OGH). He submitted the question to the ECJ for decision ( reference for a preliminary ruling March 2017).

On January 22nd, 2019, the ECJ ruled with judgment C-193/17 that the granting of a paid public holiday on Good Friday in Austria only for those employees who belong to certain churches is   prohibited under Union law according to the Equal Treatment Framework Directive (2000/78 / EC) constitutes direct discrimination on the basis of religion for those who belong to another religious community or who are non-denominational (Section 69 C-193/17).

The ECJ could not see that a necessary measure to safeguard the rights and freedoms of others (within the meaning of Art. 2 Para. 5 2000/78) nor a specific measure to compensate for disadvantages due to religion (within the meaning of Art. 7 Para . 1 2000/78) would represent (§ 69 C-193/17). The court pointed out that according to the regulation in the Rest of Work Act applicable at the time, an employee does not have to fulfill a specific religious duty on that day, but that it is sufficient if he is a member of one of the privileged churches (Section 46 C-193/17) . Evangelicals, Methodists and Old Catholics are also groups in Austria without any particular minority peculiarities. The fact that the public holiday was not regulated by law, but rather in a collective agreement, i.e. “mainly by means of an employer's duty of care towards their employees” (Section 60 C-193/17), is to be determined that there is no explicit minority protection.

Legal regulations for personal holidays

The revision was as § 7a work rest law  (ARG) Einseitiger to arrival ( "personal holiday") with the Federal Law Gazette. I no. 22/2019 introduced.

The employee can independently determine a day of the vacation due (5 weeks, 6 weeks for long-term employment relationships) once per vacation year by declaring it as a personal holiday . If the employer considers the work on the announced day to be necessary for operational reasons, he can then only "request" the employee (wording § 7a para. 2 ARG) to come to work on that day, but has no possibility to refuse or prevent the employee from going on vacation. If the employee follows the request, he is entitled to the remuneration for the hours worked plus the vacation remuneration . No vacation day is then deducted from the existing vacation entitlement, but the right to a personal vacation is then used up for this specific vacation year (“twice the remuneration consumes the right to determine”, Section 7a (2) ARG).

Every employee is entitled to this. The announcement must be made in writing three months in advance with the original signature. No reasons need to be given, not even specific religious reasons.

As a result of the Good Friday ruling - in addition to the laws explicitly amended in Federal Law Gazette I No. 22/2019 (in particular the Rest Period Act, the Agricultural Labor Act and the Agricultural and Forest Worker Service Act ) - all corresponding regulations of the general and industry collective agreements became ineffective, and the new regulation without Aftermath replaced.

Discussion and reception

The discussion was about making Good Friday a public holiday for everyone, possibly by exchanging Whit Monday , a holiday that is not regulated by the Concordat. At short notice, however, the National Council decided on February 27, 2019 to completely abolish the public holiday. A prototypical explanatory similar rule of one-sidedness has been interpreted even for vacation that for the care of sick, living in the same household to 12-year-old child is taken up because the entitlement to care leave has been used up.

Criticism came as soon as resolutions were passed by labor law experts, as this would, in their opinion, constitute an interference with the general collective agreement. The matter also sets a precedent because the collective bargaining autonomy of the social partners is constitutionally protected and so far no Austrian government has intervened in this. There are two doctrines on this: on the one hand, the decision under European law would justify the intervention, and on the other hand, the government should have left it to the social partners to implement EU law.

After the introduction, the interest in exercising the right to a personal holiday was limited.

Further consequences of the Good Friday judgment

It also follows from the ECJ ruling that collective agreements will in future no longer be allowed to stipulate any special denominational provisions on Good Friday. This regulation could also affect the Jewish holiday Yom Kippur (mobile, 2019: October 9) , which is also applicable to the Israelite religious community - also by collective agreement .

In the proceedings before the ECJ, the European Commission, the Austrian, Italian and Polish governments were involved in addition to the plaintiff and the defendant company. The Polish government was of the opinion "that the ECJ was not at all competent to decide on this issue, since no Union law was affected." The ECJ, on the other hand, ruled that the case concerned the Equal Treatment Framework Directive as well as the Charter of Fundamental Rights of the European Union , namely Art. 21 Equal treatment in employment and occupation .

It is assumed that the ECJ ruling will have Europe-wide consequences, and that holidays are no longer considered to be legally compliant with the law for certain religious groups only. It is still unclear to what extent the Austrian model of the personal holiday as the implementation of dedicated equal treatment - through the right of free choice of the individual instead of a state determination - has a role model.

Individual evidence

  1. ↑ Concordat between the Holy See and the Republic of Austria StF: Federal Law Gazette II No. 2/1934 (as amended online, ris.bka ).
  2. ↑ a b c ECJ judgment C-193/17 (curia online).
  3. ↑ ECJ: All employees have the right to a Good Friday public holiday. In: The Standard. online, January 22, 2019 (accessed on the same day).
  4. ^ AK legal protection: ECJ ruling brings a free Good Friday for everyone. In: ots.at. Vienna Chamber of Labor, January 22, 2019, accessed on May 14, 2019 .
  5. ↑ ECJ lawyer: No holiday pay for everyone when working on Good Friday In: Der Standard. online, July 25, 2018 (accessed on January 22, 2019).
  6. ↑ Request for a preliminary ruling to the European Court of Justice on Good Friday. Press release OGH (9 ObA 75 / 16v), ogh.gv.at, March 24, 2017.
  7. ↑ a b As well as in accordance with Section 69 Paragraph 1a and 1b of the Agricultural Labor Act and Section 50 Paragraph 1a and 1b of the Agricultural and Forest Worker Service Law.
  8. ↑ a b c "Personal holiday" or unilateral holiday announcement. Portal of the Chamber of Labor (beruferkammer.at) → Labor and Law → Working hours and breaks , accessed April 15, 2019.
  9. ↑ a b c d e Content of the new legal regulation on Good Friday - information on personal holiday. Portal of the Economic Chambers (wko.at) → Labor law and social law → Vacation, sick leave and inability to work , as of March 5, 2019.
  10. ↑ Questions about Good Friday: "Personal holiday" stirs feelings. In: Courier. online, February 27, 2019, section on the complex of topics the most important questions: Can everyone take a certain day off, or only Protestants?
  11. ↑ For Good Friday 2019, shortly after the introduction, a transitional solution of at least two weeks applied - this generally applies until June 22, 2019.
  12. ^ Evangelical Bishop Bünker fights for Good Friday . ORF.at, December 30, 2018 (accessed December 30, 2018).
  13. ↑ Good Friday and public holidays only on vacation. In: Salzburger Nachrichten. online (sn.at), February 27, 2019.
  14. ↑ cf. ops. cit. Questions about Good Friday. Courier , February 27, 2019, section Was it previously only possible to go on vacation with the consent of the employer?
  15. ↑ Decision in parliament despite strong criticism. ORF.at, February 27, 2019 (accessed February 27, 2019).
  16. ↑ a b cf. ops. cit. Questions about Good Friday. Courier , February 27, 2019, section May the government intervene in the General-KV?
  17. ↑ Personal holiday. On festage-oesterreich.at (cites an article in Der Standard .)
  18. ^ Good Friday: Regulation on Yom Kippur still unclear. In: religion.orf.at. January 22, 2019, accessed August 7, 2019 .
  19. ↑ "Every employee can now claim Good Friday as a public holiday". In: Upper Austrian news. online (nachrichten.at), January 22nd, 2019 - Interview with Ernst Stummer (legal advisor in the Chamber of Labor Upper Austria).