Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

Workers' Representatives Convention, 1971 (No. 135) - Austria (Ratification: 1973)

The Committee notes the observations submitted by the Federal Chamber of Labour (BAK), received on 12 August 2019, related to issues addressed in the present comment.

Article 1 of the Convention. Protection against acts of anti-union discrimination. The Committee recalls that in its previous comments, based on observations made by the BAK and while considering that the relevant provisions were not contrary to the Convention, it had requested the Government to provide information on any measure envisaged to prevent abuse in relation to section 122(1)(v) and (3) of the Labour Constitution Act (possibility to dismiss workers’ representatives without prior approval of the courts in cases of grave insults against the employer). Also based on observations made by the BAK concerning section 122(1)(iv), under which courts may approve the dismissal of workers’ representatives on the grounds of disclosure of industrial secrets, the Committee had requested the Government to indicate how it is ensured that the grounds on which courts may approve the dismissal of workers’ representatives laid down in section 122(1)(iv) and (v) of the Labour Constitution Act, namely violation of the confidentiality requirement and grave insult against the employer, are subject to a sufficiently narrow interpretation. The Committee notes that the Government reiterates its last statement and indicates that: (i) since its last comments, there have been no changes in this regard; and (ii) the Federal Ministry of Labour, Social Affairs, Health and Consumer Protection has not been notified or received complaints of any abuse by employers of section 122 of the Labour Constitution Act, nor has it received any suggestions for legislative amendments. The Committee also takes note of new observations made by the BAK, according to which, as illustrated by a recent decision of Supreme Court of Justice (OGH 27.5.2015, 8 Ob A 17/15f), there is substantial tension between, on the one hand, the exercise of rights of co-determination and rights to be involved in trade union activity and, on the other hand, the confidentiality obligations on the part of works council members. In these circumstances, the Committee requests the Government to continue providing information as to how it is ensured that the grounds on which courts may approve the dismissal of workers’ representatives laid down in section 122(1)(iv) and (v) of the Labour Constitution Act (violation of the confidentiality requirement and grave insult against the employer), are subject to a sufficiently narrow interpretation taking into account the concerns raised by the BAK.

The Committee further notes that, in its new observations, the BAK also states that: (i) in practice, employers repeatedly attempt to prevent works council elections, for instance, by dismissing employees who wish to stand as candidates within an enterprise or even by threatening to shut down the entire enterprise if the employees elect a works council; (ii) workers’ representatives employed under fixed-term contracts are not covered by the general protections against dismissal set by section 105(3) of the Labour Constitution Act; and (iii) in the opinion of the European Committee of Social Rights of the Council of Europe, section 120(3) of the Labour Constitution Act, according to which employment and dismissal protection for works council members end as early as three months after their membership expires, should be revised. Emphasizing in particular that the protection against anti-union discrimination established by Article 1 of the Convention applies to workers’ representatives in the enterprise, regardless of their contractual status, the Committee requests the Government to reply to the observations made by the BAK.

Article 2. Facilities afforded to worker’s representatives. The Committee notes with interest that, by virtue of the adoption of Federal Act BGBl. I No. 12/2017, the right of every work council member to time off for training has been expanded from three weeks to three weeks and three days. The Committee notes the Government’s indication that this extension takes into account the fact that works council members have to deal with increasingly complex issues.