Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Austria (RATIFICATION: 1951)

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Amendments to the Austrian Labour Constitution Act. The Committee notes that the Government indicates that the Austrian Labour Constitution Act (Arbeitsverfassungsgesetz – ArbVG) has been recently subject to a series of amendments concerning, inter alia: (i) the reduction to 16 years of the voting age for workers in meetings (Federal Law Gazette I No. 170/2020); and (ii) the possibility to define, through collective agreements at the company level, the framework conditions for teleworking (Federal Law Gazette I No. 61/2021 and No. 115/2022). The Committee takes due note of this information.

Article 4 of the Convention. Promotion of collective bargaining. In its previous comment, the Committed had requested the Government to provide its comments on the observations submitted by the Federal Chamber of Labour (BAK) regarding the repeal, by an Act of Parliament, of certain clauses in collective agreements that designated Good Friday as a statutory public holiday specifically for members of certain churches. The BAK highlighted that the European Court of Justice had found this practice discriminatory and mandated equal treatment for all employees. In response, the Government repealed Good Friday’s status as a statutory public holiday. This legislative act also invalidated provisions in collective agreements that had allowed the day off for members of the specified churches. The BAK emphasized that this was done without consultation with the social partners, thereby bypassing discussions on how to better address such discrimination. The Committee takes note of the indication of the Government that future collective agreements can include Good Friday provisions as long as they are non-discriminatory and that that change was essential to rectify the breach of EU law before the then forthcoming Good Friday and to uphold the principle of equal treatment. While taking due note of the elements provided by the Government and, in particular, of the need to align the Austrian legal order with EU law on equal treatment, the Committee trusts that in the future the Government will take the necessary measures to ensure that the social partners are consulted in the process of modifying legislation that could have an impact on collective agreements.

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The Committee notes the observations of the Federal Chamber of Labour (BAK), received on 12 August 2019, concerning the annulment by an act of Parliament of provisions in collective agreements recognizing Good Friday as a statutory public holiday for members of the Evangelical Churches of the Augsburg and Helvetic Confessions, the Old Catholic Church and the United Methodist Church. The Committee notes that the BAK states in particular that: (i) under section 7(3) of the Rest Periods Act (ARG), Good Friday was a statutory public holiday for members of the four churches; (ii) on 22 January 2019, the European Court of Justice decided in Case C–193/17 that the Good Friday regulation represented a direct discrimination on the grounds of religion and that until the Government amends its legislation, in order to restore equal treatment, all employees are entitled to this public holiday irrespective of their religious affiliation, or to compensation, if directed to work by their employer on this day; (iii) the Government has thus decided to abolish Good Friday as a statutory public holiday; (iv) the legislation was subsequently amended in a manner that directly interferes with provisions of collective agreements that provide for a day off on Good Friday for employees who are members of one of the churches in question, rendering these provisions invalid; and (v) the decision by the Government and the legislative amendment were made without the social partners being given the opportunity to conduct talks on the collective agreements concerned and on more appropriate ways to remove the mentioned discrimination. The Committee requests the Government to provide its comments on the observations mentioned above.

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The Committee notes the information supplied by the Government in its reports.

Referring to the comments that it has been making for many years concerning the need to extend the protection against unlawful dismissals (especially for trade union activities) to workers in enterprises with fewer than five employees, the Committee notes with satisfaction that the Supreme Court, in its ruling of 11 August 1993, 90bA 200/93, pronounced that section 879 ABGB which stipulates that "A contract which contravenes a statutory prohibition or the moral law is null and void ..." was also applicable to unilateral transactions and hence to dismissals. Thus, according to this ruling, the dismissal of an employee of an enterprise not subject to the establishment of a works council (enterprises with fewer than five employees) on account of trade union activities (a so-called "motivated" dismissal - Motivkündigung) is, according to section 879 ABGB, null and void, being a contravention of the moral law.

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The Committee notes the Government's report.

With reference to the comments which it has been making for many years concerning the need to adopt legislative measures for the protection against unlawful dismissals (in particular for trade union activities) of workers in enterprises with fewer than five employees, the Committee notes with regret that Act No. 502 of 1993 has not amended the Collective Labour Relations Act of 1974 on this point.

The Committee notes in this respect the Government's statement in its report that the Ministry for Labour and Social Affairs is still endeavouring to extend the general protection against dismissal for trade union activities to enterprises employing fewer than five employees and that, after long discussions with the social partners, it has been possible to achieve substantial improvements in the social field. The Government however adds that the adoption of all the claims which were made would not have been approved by Parliament and would have endangered the other improvements obtained by the workers.

The Committee once again requests the Government to take measures as soon as possible to provide workers employed in enterprises with fewer than five employees with adequate protection against dismissal, particularly when the dismissal is on grounds of trade union activity, in accordance with Article 1 of the Convention. It requests the Government to indicate any progress achieved in this respect in its next report.

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The Committee notes that the Government's report contains no reply to its comments. It hopes that the next report will include full information on the matters raised in its previous direct request, which read as follows:

The Austrian Congress of Chambers of Workers alleges that, as evidenced by a recent judicial decision, the employer side decides ultimately and unilaterally which workers are covered by valid collective agreements, which contradicts the principle of voluntary bargaining embodied in Article 4 of the Convention.

The Government submits for its part that membership of lawful representative associations is governed by law, that the Chamber of Commerce may not assign employers to occupational groups in an arbitrary manner and that there exist legal remedies in case of an incorrect application of the law.

The Committee would appreciate being provided with all the relevant legal provisions in this respect, and with the judgement mentioned above.

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The Committee has taken note of the Government's report.

Referring to its earlier comments concerning the need to adopt legislative measures for the protection against unlawful dismissals (in particular for trade union activities) of workers in enterprises with fewer than five employees, the Committee notes with interest the Government's statement that the extension to these workers of the general protection against dismissal has been for some time one of the major objectives of social policy in Austria, and that the Ministry of Labour and Social Affairs will endeavour to reach this goal, the attainment of which has been so far impossible due to the employers' opposition. The Government adds that it will reintroduce this question during negotiations with the social partners, but that the presentation of a bill on the subject seems useless for the time being since there is no majority in the National Council to ensure its adoption.

The Committee emphasises that the protection of workers against anti-union discrimination is an essential aspect of the Convention and reiterates that the continued opposition of one of the social partners should not prevent the Government from adopting measures to bring its legislation into conformity with the Convention.

The Committee invites the Government rapidly to initiate measures with a view to implementing its stated objective of extending to workers in enterprises with less than five employees the general protection against dismissals, including for union activities. It requests once again the Government to indicate in its next report the measures so taken or the developments on this issue.

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The Committee notes the reports of the Government and the observations made by the Austrian Congress of Chambers of Workers.

The Congress alleges that, as evidenced by a recent judicial decision, the employer side decides ultimately and unilaterally which workers are covered by valid collective agreements, which contradicts the principle of voluntary bargaining embodied in Article 4 of the Convention.

The Government submits for its part that membership of lawful representative associations is governed by law, that the Chamber of Commerce may not assign employers to occupational groups in an arbitrary manner and that there exist legal remedies in case of an incorrect application of the law.

The Committee would appreciate being provided with all the relevant legal provisions in this respect, and with the judgement mentioned above.

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The Committee has taken note of the Government's reports and of the observations made by the Austrian Congress of Chambers of Workers.

Referring to its earlier comments concerning the need to adopt legislative measures for the protection against unlawful dismissals (in particular for trade union activities) of workers in enterprises with fewer than five employees, the Committee notes with regret that, according to the report of the Government, the employers' opposition prevented once again the adoption of a legislative amendment providing such protection. While noting with interest that under Amendment No. 475/1990 to the Collective Labour Relations Act, the protection afforded to individual workers against dismissal has been enlarged and that the Ministry for Labour and Social Affairs is considering further amendments to the labour legislation with a view to improving the protection of individual workers against anti-union discrimination, the Committee considers that the continued opposition of one of the social partners should not prevent the Government from adopting measures to bring its legislation into conformity with the Convention.

The Committee requests once more the Government to take the necessary measures, along the lines mentioned above, to protect workers in enterprises with fewer than five employees against acts of anti-union discrimination and to bring its labour legislation into conformity with the Convention, and to indicate in its next report any development in that respect.

The Committee addresses a request directly to the Government on another point.

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The Committee notes the report of the Government and the observations made by the Austrian Congress of Chambers of Workers.

The Committee observes that, with respect to the burden of proof applicable in appeals against anti-union motivated dismissals, both the Government and the Austrian Congress of Chambers of Workers agree that section 105(5) of the Collective Labour Relations Act of 1973, in fact, imposes on employers the obligation to prove in such cases that the dismissal of an employee had nothing to do with his trade union activities.

As regards the protection against unlawful dismissals (in particular for trade union activities) afforded to workers in enterprises with fewer than five employees, the Committee has underlined for several years that these employees have no protection against acts of anti-union discrimination by employers since section 105 of the Collective Labour Relations Act of 1973 - which protects workers by providing a list of grounds of dismissal that may be challenged - does not apply to small undertakings. The Committee notes with regret that the opposition of employers during bargaining talks between the social partners prevented an amendment to the Act, which would have extended that protection to these workers. However, the Committee notes with interest that the Federal Ministry for Employment and Social Affairs will persevere in its endeavour to obtain better protection for these workers against discrimination based on trade union activities.

The Committee therefore requests the Government to indicate in its next report the measures taken to ensure that workers in enterprises with fewer than five employees are protected against acts of anti-union discrimination, and to bring its legislation into conformity with the Convention, since this shortcoming has been the object of its comments for a number of years.