Direct Request (CEACR) - adopted 2015, published 105th ILC session (2016)

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

The Committee notes the observations submitted by the Federal Chamber of Labour (BAK) received on 26 August 2014.

Article 1 of the Convention. Protection against acts of discrimination. The Committee recalls that its previous comments concerned 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). The Committee had noted that, albeit not in violation of the Convention, this provision could however give rise to abuse by the employer in order to interfere with the functioning of the works council. It had therefore suggested that the Government envisage taking into consideration Paragraph 6 of the Workers’ Representatives Recommendation, 1971 (No. 143).

The Committee notes that, according to the Government’s report, there have been no legislative changes in this regard, and that the Federal Ministry of Labour, Social Affairs and Consumer Protection has neither been notified of any judicial proceedings relating to abuse by the employer of section 122 of the Labour Constitution Act nor of any related complaints. Similarly, the BAK indicates that no incident of abuse of this provision can be discerned from the judgments of the higher courts. The Committee notes that the Government states that the grounds on which the court may approve the dismissal of a workers’ representative are listed exhaustively and are to be interpreted narrowly to prevent a bypassing of the protection against dismissal. On the other hand, the Committee notes that, according to the BAK, the use of new technologies such as social media and the rapid spread of information make it more likely for works council members to come within the remit of section 122(1)(v) and thus to lose the protection against dismissal afforded to them by section 120 of the Labour Constitution Act. The Committee notes an example provided by the BAK in this context, of a staff representative who cursed sympathizers of a political party on the Internet and was dismissed with the court holding that reasonable cooperation with the employer was no longer possible.

The Committee notes that the BAK also refers to a source of tension between the confidentiality obligation for works council members set out in section 115(4) of the Labour Constitution Act (to be read in conjunction with section 122(1)(iv) under which courts may approve the dismissal of workers’ representatives on grounds of disclosure of industrial secrets) and the protection of whistleblowing (that is the disclosure by staff organizations, including works councils, of failings and irregularities through the passing on of information), a tension that can be exacerbated by modern communication technologies.

The Committee once again requests 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. It also requests the Government to provide 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, namely 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.