LEXOLOGY Getting the Deal Through: Employment: International

2019 | academic and other publication

Find the full comparative guide on Employment: International on the LexGTDT tool. Here you can find the answers for Austria.


Country snapshot

Key considerations

Which issues would you most highlight to someone new to your country?
Austrian labour law can generally be characterised as stable. Due to the strong role of and cooperation between the major economic interest associations which comprise the so-called ‘social partnership’ (the Federal Economic Chamber, the Federal Chamber of Employees, the Association of the Presidents of the Chambers of Agriculture and the Federation of Trade Unions), there are almost no strikes or lockouts. Further, Austrian labour law encompasses a multitude of rules, which provides a high level of legal certainty.

What do you consider unique to those doing business in your country?
Economic interest associations of employers and employees negotiate collective bargaining agreements (CBAs) at an informal level without any proceedings. Due to the existence of CBAs, many industrial conflicts are avoided or resolved.

Is there any general advice you would give in the employment area?
In view of the many regulations that exist and the fact that Austrian labour law is generally not determined by European law, employers in Austria should familiarise themselves with the applicable legal regulations. Violations can result in large penalties (eg, under the Anti-Wage and Social Dumping Act).

Emerging issues/hot topics/proposals for reform

Are there any noteworthy proposals for reform in your jurisdiction?
In some areas of employment, the so-called ‘family time bonus’ is available, which gives fathers the opportunity to take care of a newborn child together with the mother for 28 to 31 days. At present, this option requires an agreement between the employee and the employer. Not all fathers have a general legal claim to this right. However, the government is discussing this entitlement.

What are the emerging trends in employment law in your jurisdiction?
The Working Hours Act and the Hours of Rest Act were recently reformed. The working time provisions were changed with effect from 1 September 2018. Among other things, the maximum working time limits were raised from:

  • 10 hours per day to 12 hours per day; and
  • 50 hours per week to 60 hours per week.

It was also decided that a maximum of 20 overtime hours per week will be permitted instead of the previous 10. Thus, 12-hour days are now permissible and working hours can be more flexible. Trade unions strongly criticised these changes.


The employment relationship

Country specific laws

What laws and regulations govern the employment relationship?
Several laws and regulations may apply to employment relationships, including:

  • the Act on the Adjustment of Labour Contract Law;
  • the Salaried Employees Act;
  • the Labour Constitution Act;
  • the Austrian Civil Code;
  • the Trade Act;
  • the Annual Leave Act;
  • the Working Time Act;
  • the Maternity Protection Act;
  • the Equal Treatment Act;
  • the Labour and Social Court Act; and
  • the Labour Protection Act.

Further, ‘collective bargaining agreements’ (ie, written agreements between employers and employee associations) set out special regulations for specific trades and industries.

Who do these cover, including categories of worker?
As regards regular employees, the law has historically distinguished between blue collar and white collar workers. However, this distinction is losing its importance, as the two groups are currently being harmonised. The main regulations which differentiate between these two groups are:

  • the Salaried Employees Act (which applies to white collar workers); and
  • the Trade Act (which applies to blue collar workers).

The term ‘white collar worker’ is regulated by Section 1 of the Salaried Employees Act, which sets out that the act applies to persons who are employed by a trader primarily to:

  • provide commercial services (eg, assistants);
  • provide higher, non-commercial services; or
  • perform office work.

The remaining persons not covered by this definition constitute blue collar workers.

Employees in senior managerial positions (eg, senior executives and directors) are occasionally exempt from certain labour laws and collective bargaining agreements due to their specific roles and functions, as they represent, in part, their employer's interests.

Misclassification

Are there specific rules regarding employee/contractor classification?
There are three types of service/employment contract under Austrian law:

  • regular employment contracts;
  • freelance contracts; and
  • service contracts.

In general, employment law does not apply to freelance or service contracts.

In accordance with case law, regular employment contracts are characterised by the following key criteria:

  • a predetermined place of work;
  • predetermined working hours;
  • an obligation to perform duties in person;
  • the employee's integration into the employer’s organisation (eg, they have a workspace within the company);
  • a lack of right to refuse the employer's instructions;
  • use of the employer's resources;
  • compliance with the employer's policies; and
  • a prohibition on side activities.

Contracts

Must an employment contract be in writing?
In principle, the conclusion of an employment contract does not require any particular form. Contracts may be concluded orally, in writing or by coherent actions, although it is recommended that they be concluded in writing. Where no written employment agreement exists, employers must provide employees with a written statement which summarises the salient features of the relationship immediately on the commencement of the employment.

However, in some cases, special provisions require contracts (eg, apprenticeship contracts) to be in written form in order to provide a protective warning to the employee. A violation of this requirement may render an agreement invalid.

Are any terms implied into employment contracts?
Under Section 2(2) of the Act on the Adjustment of Labour Contract Law, written statements must include, at a minimum:

  • the employer’s name and address;
  • the employee’s name and address;
  • the commencement date of the employment relationship;
  • the applicable notice period and termination or end date (in the case of fixed-term employment contracts);
  • the proposed workplace;
  • the employee's salary scheme classification;
  • the job title or position;
  • the monthly gross base salary and any further remuneration (eg, holiday and Christmas payments);
  • the due date of remuneration;
  • any holiday entitlements;
  • the agreed normal daily or weekly working hours;
  • the applicable collective bargaining agreement; and
  • the name and address of the pension fund.

Are mandatory arbitration/dispute resolution agreements enforceable?
Pursuant to the Labour and Social Court Act, dispute resolution clauses are admissible only in limited cases. As regards international and territorial jurisdiction, agreements on a change in jurisdiction are in general effective only if:

  • they were concluded after the specific legal dispute arose; or
  • they allow the employee to bring the matter before other courts.

The substantive jurisdiction of the Labour and Social Courts cannot be changed by agreement.

Arbitration agreements are admissible in labour law matters only for disputes that have already arisen. Arbitration is rarely used in Austria.

How can employers make changes to existing employment agreements?
In principle, a contract amendment is possible only with the consent of the employee and the employer. To obtain approval for the amendment of a contract, employers often use so-called ‘notice of dismissal for amendments’. One party (usually the employer) declares the termination of the employment relationship with the withdrawal of an offer to change the contract as a condition. The termination will become effective only if the simultaneous offer to amend the contract is rejected.

Contract amendments or adjustments can also result from implied declarations of intent – for example, if the employee's field of activity is changed without an explicit declaration and the employee carries out this work without comment.

Foreign workers

Is a distinction drawn between local and foreign workers?
For reasons of labour market policy and to protect domestic employees in Austria, the employment of foreigners is subject to various restrictions and controls set out in the Foreigners Employment Act. In principle, ‘foreigners’ are individuals who do not hold Austrian, EU or EEA citizenship. Employers may employ foreigners only if valid work and residence permits have been issued (eg, a red-white-red-card). EU, EEA and Swiss citizens are generally allowed to work and reside in Austria.


Recruitment

Advertising

What are the requirements relating to advertising positions?
Under the Equal Treatment Act, job ads must be non-discriminatory. Neither employers nor employment agencies can advertise jobs themselves or through third parties in a discriminatory manner in public or internal tenders. Discriminatory characteristics may be included in the invitation to tender only if, by reason of the nature of the occupational activities concerned or the conditions under which they are carried out, they constitute a genuine and determining occupational requirement, provided that the purpose is legitimate and proportionate to the requirements.

Further, job ads must state the base salary according to the applicable collective bargaining agreement, if they refer to a specific position. 

Background checks

What can employers do with regard to background checks and inquiries in relation to the following:

(a) Criminal records?
In principle, there is no obligation for employees to provide criminal records to employers. This is permissible only on a voluntary basis. However, a private employer may require an applicant to submit a criminal record only in certain cases (eg, if it is necessary for the type of activity to be performed). It is therefore permissible to demand a criminal record with regard to previous convictions for property offences if the activity to be carried out consists of dealing with or having access to substantial assets (eg, bank employees). Questions about expunged criminal records are inadmissible.

(b) Medical history?
Under public law, employers cannot ask detailed questions about applicants’ health or request that they submit medical reports. However, exemptions may apply in individual cases based on a balancing of interests. If there is a danger to the life and health of others working in a company, the employer's right to ask questions must be recognised. If employees will carry out hazardous activities under certain circumstances, the employer's right to ask questions extends exclusively to the suitability of the employee and not to individual clinical findings.

Employers cannot ask questions concerning pregnancy.

(c) Drug screening?
Background checks and inquiries regarding drug screening may be permissible in individual cases based on a balancing of interests.

(d) Credit checks?
Background checks and inquiries in relation to credit checks are generally not permitted. Employers can enquire into employee's financial circumstances only to the extent permitted by law – in particular, with regard to their obligations concerning the seizure of wages.

(e) Immigration status?
According to the Foreigners Employment Act, a foreigner may be employed only if:

  • an employment or posting permit has been issued to the employer;
  • a notification confirmation has been issued; or
  • the foreigner has a residence permit.

Employment of a foreigner without a valid employment permit is prohibited, and any employer which does so will be liable to prosecution. Employers may therefore request this status during the application process.

(f) Social media?
It is unclear whether all publicly available information on a candidate may be used in the application procedure or only information which can be used to determine the candidate's suitability for the job to be carried out. The use of information from job-oriented social networks (eg, Xing) is generally allowed. According to legal literature, information provided through leisure-oriented social networks (eg, Facebook) cannot be used by employers during the application process.

(g) Other?
In principle, there is no general prohibition to demand information from an applicant’s former employer. However, according to case law, former employers have a post-contractual duty of care and must therefore refrain from making any statements that would make it more difficult for the former employee to progress in their professional career.


Wages and working time

Pay

Is there a national minimum wage and, if so, what is it?
There is no statutory minimum wage in Austria. Remuneration is primarily based on the contractual agreement between the employee and the employer. However, in more than 95% of Austrian employment relationships, collective bargaining agreements (CBAs) regulate a minimum wage level which must be observed due to the relatively mandatory effect of CBAs. If an employment agreement stipulates a lower salary than that stated in the applicable CBA, the clause will be void and the high penalties set out in the Anti-Wage and Social Dumping Act may be imposed. Employers and employees may agree on a higher salary than the minimum wage level in a CBA.

Are there restrictions on working hours?
The Working Time Act and the Rest Period Act set out the framework in which employees can be called on to perform work. In general, the normal daily working time is eight hours and the normal weekly working time is 40 hours. The applicable CBA may provide otherwise (eg, a normal weekly working time of 38.5 hours). The maximum daily working time is 12 hours and the maximum weekly working time is 60 hours. The extent to which an employee must perform work within this framework depends on the employment contract or the CBA. Compliance with working time regulations is monitored by the labour inspectorates and violations will result in administrative penalties.

Senior and executive employees are generally not subject to the Working Time Act or the Rest Period Act and are therefore not restricted as regards working hours.

Hours and overtime

What are the requirements for meal and rest breaks?
If an employee’s total daily working time exceeds six hours, they must be given a rest break of at least 30 minutes. Since rest breaks are not part of working time, they should not be considered when determining the maximum limits for daily or weekly working time or remunerated. At the end of their work day, employees will be granted an uninterrupted (and unpaid) rest period of 11 hours. Employees are also entitled to an uninterrupted rest period of at least 36 hours each calendar week, which must – in principle – include a Sunday (ie, a weekend rest).

How should overtime be calculated?
Overtime occurs when the limits of the permitted statutory normal daily or weekly working time are exceeded (in principle eight or 40 hours). Overtime, unless otherwise stipulated, is subject to:

  • a surcharge of 50% of the agreed hourly salary or 100% in the case of overtime at night or on Sundays and public holidays; or
  • time compensation, whereby the overtime surcharge will be taken into account (1:1.5 or 1:2) when calculating the time compensation or paid separately.

CBAs often provide for additional surcharges. In principle, a lump-sum or all-in payment for overtime can also be effectively agreed, whereby a certain number or all overtime hours are covered by the agreed payment.

What exemptions are there from overtime?
A maximum of 20 overtime hours per week is permitted. However, the average weekly working time cannot exceed 48 hours in an average 17-week period. Employees also have the right to refuse overtime without giving a reason if their daily working time will exceed 10 hours or their weekly working time will exceed 50 hours. Employees cannot be discriminated against for refusing to work overtime, particularly with regard to remuneration, promotion opportunities and relocation.

Is there a minimum paid holiday entitlement?
According to the Annual Leave Act, employees are entitled to a minimum of five weeks’ paid holiday per working year, which increases to six weeks’ after 30 years of service. Based on the statutory provisions, full entitlement to holidays accrues after six months of service; until then, it accrues only on a pro rata basis. In case of a five-day working week, employees are therefore entitled to 25 or 30 working days as paid holiday. In the case of a six-day working week, the holiday entitlement is 30 or 36 days.

What are the rules applicable to final pay and deductions from wages?
Employees and employers contribute to the Austrian social security system. Employers must account for the following contributions in an employee’s final pay, calculated based on their monthly gross salary, but only up to the maximum contribution basis of €5,220 (for 2019):

social insurance (ie, health, accident, pension and unemployment insurance) – 21.48 %;
contribution to a pension fund – 1.53 %;
municipal tax – 3%; and
contribution to the family equalisation fund – 3.9 %.

Employers must also withhold wage tax from an employee's salary and pay it to the tax office on their behalf. Employees must pay contributions to the social insurance amounting to about 17% of their monthly gross salary. The contributions are deducted from their wages.

Record keeping

What payroll and payment records must be maintained?
In general, there is a three-year limitation on claims regarding employment entitlements under an employment contract. CBAs or employment contracts may provide a shorter limitation. Other than that, employees are entitled to a service certificate after 30 years, for which their employer should provide the necessary information.

In addition, books and records (for tax reasons), as well as supporting documents, must be stored for seven years. Supporting documents include:

  • payment slips;
  • invoices;
  • receipts for cash payments; and
  • payroll accounting documents.

Employers must keep a record of the hours worked by their employees. No specific case law exists on how long these records must be maintained, but employers are advised to do so for seven years.


Discrimination, harassment & family leave

What is the position in relation to:

Protected categories

(a) Age?
In Austria, there is a general prohibition on discrimination in employment relationships. The Equal Treatment Act and the principle of equal treatment, which is incorporated into Austrian labour law, indicate that employees cannot arbitrarily or for irrelevant reasons be treated worse than other employees under the same conditions. The Equal Treatment Act prohibits any discrimination based on age. The Equal Opportunity Commission was established to support employees to enforce their rights towards their employer or before the labour courts. 

(b) Race
The Equal Treatment Act prohibits any discrimination based on ethnicity.

(c) Disability?
The Disabled Persons Employment Act prohibits discrimination based on disability.

(d) Gender?
The Equal Treatment Act prohibits any discrimination based on gender.

(e) Sexual orientation?
The Equal Treatment Act prohibits any discrimination based on sexual orientation.

(f) Religion?
The Equal Treatment Act prohibits any discrimination based on religion or ideology.

(g) Medical?
In Austria, there is a general prohibition on discrimination in employment relationships. The Equal Treatment Act and the principle of equal treatment, which is incorporated into Austrian labour law, indicate that employees cannot arbitrarily or for irrelevant reasons be treated worse than other employees under the same conditions. 

(h) Other?
Under the Equal Treatment Act, both direct and indirect discrimination is prohibited. Direct discrimination occurs when a person is treated less favourably than another or would be treated in a comparable situation based on the above grounds. Indirect discrimination occurs where an apparently neutral provision, criteria or practice could disadvantage persons based on the above grounds, unless that provision, criteria or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.

The Labour Constitution Act forbids discrimination and protects employees who exercise their statutory works representation powers.

Family and medical leave

What is the position in relation to family and medical leave?
Mothers cannot work during the eight weeks before and after giving birth (the so-called 'maternity protection period'). Following the protection period, mothers and fathers are both entitled to parental leave until the child reaches the age of two. During this time, the mother or father is entitled to a children's nursing allowance and will enjoy special protection against termination of their employment. The children's nursing allowance is paid by the responsible health insurance fund, not the employer. Under certain conditions, employees have the statutory right to work part-time until their child's seventh birthday.

Employees are entitled to paid sick leave if their inability to work is not due to gross negligence or a deliberate action on their part. The period of continued wage payments to which an employee is entitled depends on their seniority. For service of up to one year, employees are entitled to six weeks’ paid six leave. This increases to up to 12 weeks’ paid sick leave after 26 years of service. Within this period, the employer pays the full wage. In addition, all employees are entitled to a further payment of half of their salary for an additional four weeks. These four weeks are added to each of the initial periods as set out above.

Harassment

What is the position in relation to harassment?
According to the Equal Treatment Act, ‘harassment’ is any unwanted conduct relating to the grounds of discrimination set out under the act which: 

  • violates or seeks to violate the dignity of the person concerned;
  • is undesirable, inappropriate or objectionable to the person concerned; and
  • creates or seeks to create an intimidating, hostile, degrading or humiliating environment for the person concerned.

This includes both sexual and gender-based harassment.

Employers have a duty to protect their employees from harassment, which can lead to the (justified) termination of an employment relationship on the employee’s part due to psychological strain. In the case of harassment, employers must therefore promptly intervene in an appropriate manner; otherwise, they may be liable to pay compensation.

In the event of harassment, claims for injunctive relief and damages may exist. The Disabled Persons Employment Act also protects against harassment.

Whistleblowing

What is the position in relation to whistleblowing?
Whistleblowing refers to an individual employee's reporting of grievances within a company. In this context, whistleblowing can be organised externally (eg, reporting to the authorities) or internally (eg, hotlines). Whistleblowing is particularly common among Austrian companies of international groups. Whistleblowing systems may affect a wide range of labour law issues (eg, employee loyalty, employer's duty of care and data protection). The establishment of mandatory systems for monitoring the conduct of colleagues based on the intensity and permanence of monitoring may require the consent of the works council in accordance with Section 96(1)(3) of the Labour Constitution Act or – if no works council exists – the employee.

In Austria, there are no statutory protection rules to safeguard whistleblowers. Further, there are no specific regulations for whistleblowing or whistleblowing hotlines.


Privacy in the workplace

Privacy and monitoring

What are employees’ rights with regard to privacy and monitoring?
Employee monitoring is permissible unless it affects the employees’ human dignity. Monitoring measures that affect human dignity may be lawful, but require:

  • the consent of the works council (in the form of a shop agreement); or
  • the written consent of the employee concerned, if no works council exists.

Measures violating human dignity are unlawful.

Control measures include any practices useful for monitoring employees and all technical facilities objectively suitable for this purpose.

Monitoring measures are not permitted if they have no material connection with the work being performed. In order to encroach on an employee's personal rights, the interests of the employer must prevail and the principle of proportionality must be observed. If the control measure relates to personal data, the Data Protection Act must also be observed.

To what extent can employers regulate off-duty conduct?
Employees have comprehensive fiduciary duties under their employment contract. These are mainly cease-and-desist obligations, which oblige them to refrain from acts that adversely affect their company’s interests. The basic rule in this regard is that only business conduct is covered by this duty to safeguard the interests of others. As a rule, the off-duty conduct of employees is irrelevant under labour law. An employment contract may also regulate aspects of private life in only a few exceptional cases. For example, a professional athlete may have to eat a healthy diet or refrain from smoking.

Are there rules protecting social media passwords in the employment context and/or on employer monitoring of employee social media accounts?
Based on their duty of care, employers are generally not entitled to request employee social media passwords in an employment context.

Employers can monitor the extent to which their employees use social networks during working hours. However, the admissibility of the specific control action must be assessed on a case-by-case basis and depends on whether the employer has expressly prohibited or regulated private use.

Statements made on social networks can also affect the professional sphere. However, in principle, the publication of opinions or photos has no influence on an employment relationship. The situation is different when employees publish contributions that allow conclusions to be drawn about the employer and it is affected or damaged by such statements. Publicly accessible statements by an employee on social networks may be a reason for immediate termination with cause.


Trade secrets and restrictive covenants

Intellectual Property

Who owns IP rights created by employees during the course of their employment?
According to the Patent Act, employees are generally entitled to the grant of a patent for inventions made by them during their employment, unless otherwise stipulated.

However, employers may be entitled to employee inventions made during employment. It may be agreed that any employee invention in the future be assigned to the employer if it falls within the employer's line of business and:

  • the invention resulted from the employee's official duties; or  
  • the employee created the invention through their professional activity; or 
  • the invention was substantially facilitated by the use of the employer’s experience or resources.

In case of assignment, employees are entitled to reasonable compensation for their inventions. Further provisions may be set out in the applicable collective bargaining agreement or employment contract.

Pursuant to Section 10(1) of the Copyright Act, the author of a work is its creator. Authorship cannot be waived; however, employees may transfer their rights to use a copyrighted work to their employer.

Restrictive covenants

What types of restrictive covenants are recognised and enforceable?
In Austria, restrictive covenants apply for the duration of an employment relationship (the prohibition on competition) and for a period after the termination of the employment relationship (the non-compete clause). Non-solicitation or client protection clauses also may be agreed.

Non-compete

Are there any special rules on non-competes for particular classes of employee?
For blue collar and white collar workers, a prohibition on competition is used to prevent them from running an independent commercial business or entering into transactions on their own account or on the account of third parties in the employer's line of business during their employment without their employer's consent. Non-compete clauses are permissible only to the extent that:

  • the restriction relates to an activity in the employer's line of business;
  • the restriction does not exceed one year from the termination of an employment contract;
  • a specific minimum monthly remuneration of €3,480 gross (in 2019) is fulfilled;
  • the employee is not a minor; and
  • compliance with the non-compete clause does not unduly complicate the employee's professional progress.

In addition, enforceability depends on how employment is terminated. The clause is permissible only in cases of:

  • termination by the employee;
  • unjustified effective termination for good cause by the employee;
  • justified effective termination for good cause by the employer;
  • termination by the employer (only if it declares at the time of giving notice that it will continue to pay the employee's recent remuneration for the period of restraint); and
  • termination by mutual agreement.

Discipline and grievance procedures

Procedures

Are there specific laws on the procedures employers must follow with regard to discipline and grievance procedures?
N/A.


Industrial relations

Unions and layoffs

Is your country (or a particular area) known to be heavily unionised?
The main voluntary professional association in Austria on the employee side is the Federation of Trade Unions (ÖGB), which encompasses various trade unions. The ÖGB contributes to the continuous social, economic and cultural development of Austria and tries to create the most favourable working conditions possible for its members. The ÖGB comprises not only all employees, but also unemployed persons, pensioners and other professionals.

What are the rules on trade union recognition?
Voluntary professional associations or coalitions are associations formed on a voluntary basis to protect the working and economic conditions of their members. The associations are entitled to competences only if they have been authorised to conclude collective bargaining agreements (CBAs) by the Federal Arbitration Office. To be authorised, associations must:

  • set out their regulation of working conditions in their staff regulations;
  • operate in a wider geographical and technical field;
  • be of decisive economic importance on the basis of the number of members and the scope of their activities; and
  • ensure their independence from opponents.

What are the rules on collective bargaining?
‘CBAs’ are written agreements between bodies of employees and employers that are competent to undertake collective bargaining, which have a similar effect to the law. CBAs fulfil a number of social and economic policy functions in Austria, from which both employees and employers benefit. For example, they fix minimum wages and minimum working conditions for a certain period (usually one year), which cannot be undercut. CBAs must be in writing and signed by the contracting parties to be legally valid. Each CBA must be deposited with the Federal Ministry of Labour and Social Affairs and published.


Termination

Notice

Are employers required to give notice of termination?
Notice of termination is generally not restricted to specific causes, although the notice periods and termination dates set out in the Salaried Employees Act apply for white collar workers if the individual employment contract does not provide for different notice periods and dates.

The notice period for a termination on behalf of an employer depends on the length of the employee's service. Accordingly, employers must observe a six-week notice period, which increases to five months after their 25th year of service.

Besides termination by notice, employment relationships can be terminated by mutual agreement. The employer and the employee can agree freely on the termination date without considering statutory or contractual notice periods or effective dates.

Redundancies

What are the rules that govern redundancy procedures?
Besides stipulating notice periods, the applicable law also provides for special termination dates. In this respect, notice given by the employer will generally take effect at the end of a calendar quarter. However, the Salaried Employees Act allows CBAs and individual agreements under which notice of termination ends on the last or the 15th day of a month. This possibility is often exploited in employment contracts. For notice given by an employee, the statutory end date for their termination of employment is always at the end of a calendar month. However, other end dates may be contractually agreed.

Where a works council exists, it must be informed of any proposed notice of termination at least seven days prior to the effective notice of termination.

Are there particular rules for collective redundancies/mass layoffs?
Employers must notify their local branch office of the public employment service (AMS) if they plan to terminate a certain number of employment relationships (by dismissal or mutual consent at the employer's initiative) within a 30-day period (the so-called ‘early warning system’). Such notification must be filed if the employer plans to terminate the employment relationships of at least:

  • five employees in business units which usually have between 20 and 100 employees;
  • 5% of employees in business units which usually have between 100 and 600 employees;
  • 30 employees of business units which usually have more than 600 employees; or
  • five employees who have reached the age of 50.

The AMS must be notified at least 30 days before giving notice to the employees concerned (or the conclusion of termination agreements).

If the employer fails to notify the public employment service in accordance with the legal requirements or terminates employment relationships before the end of the 30-day period, the terminations will be null and void. As a consequence, the employees concerned could claim reinstatement.

Protections

What protections do employees have on dismissal?
Ordinary termination of employment requires no specific reasons. However, employees may challenge their termination for being:

  • based on unlawful grounds (eg, for membership of a trade union, pregnancy or claiming to be entitled to certain rights or payments); or
  • socially unfair.

In both cases, the employee may claim reinstatement.

In practice, older employees are more likely to challenge the termination of their employment for being socially unfair.

Employment relationships with disabled persons, pregnant women, parents on parental leave or  working part-time and works council members, among others, may be terminated only with the consent of a court or an authority. The court or the authority will give permission to terminate the employment relationship only if there are specific reasons for doing so, as stated by law.


Courts/tribunals

Jurisdiction and procedure

Which tribunals or courts have jurisdiction to hear complaints?
The Labour and Social Court Act regulates jurisdiction in labour and social law matters. The regional courts have jurisdiction in the first instance, the higher regional courts have jurisdiction in the second instance and the Supreme Court has jurisdiction in the third instance.

What is the procedure and typical timescale?
The Labour and Social Court Act regulates the procedure in labour and social law matters before the regular courts. There is no obligation to be represented by a lawyer before the first-instance labour and social courts. The typical timescale is approximately several months to one to two years for first-instance proceedings.

Appeals

What is the route for appeals?
An appeal against a regional court decision may be made to the competent higher regional court in labour and social law cases. Higher regional court decisions may be appealed by orderly revision to the Supreme Court if they depend on the resolution of a substantial question of law. In its judgment, the Higher Regional Court must decide whether such a legal question of considerable importance exists. If its existence is denied, an extraordinary revision can be raised.

legal service:

labour & employment

country:

austria

publishing house

Lexology