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

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

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.

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

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.

Direct Request (CEACR) - adopted 2009, published 99th ILC session (2010)

Article 1 of the Convention. Protection against acts of discrimination. The Committee recalls that several of its previous comments concerned section 122 of the Labour Constitution Act (legal grounds for dismissal of workers’ representatives without prior approval of the courts in cases of grave insults against the employer). The Committee had noted that, although this provision was not in violation of the Convention, it however might 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), which includes in the measures to ensure effective protection of workers’ representatives, a requirement of either consultation with, or an advisory opinion from, or the agreement of an independent body, public or private, or a joint body, before the dismissal of a workers’ representative becomes final.

The Committee notes that according to the Government’s report, since its last comments, there have been no legislative changes in this regard and that the Federal Ministry of Industry and Labour has not been notified of any case of judicial proceedings relating to abuse by the employer of section 122. The Committee requests the Government to inform it of any actions relating to section 122 of the Labour Constitution Act.

Direct Request (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee notes the Government’s report. It further notes the observations of the Federal Chamber of Labour.

The Committee recalls that its previous comments concerned section 122 of the Labour Constitution Act (legal grounds for dismissal of workers’ representatives without prior approval of the courts in cases of grave insults against the employer). The Committee had noted that although this provision was not in violation of the Convention it, however, might 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 might envisage taking into consideration Paragraph 6 of the Workers’ Representatives Recommendation, 1971 (No. 143), which includes in the measures to ensure effective protection of workers’ representatives, a requirement of either consultation with, or an advisory opinion from, or the agreement of an independent body, public or private, or a joint body, before the dismissal of a workers’ representative becomes final.

In this respect, the Committee notes the observation of the Federal Chamber of Labour, which is of the opinion that the suggestion of the Committee of Experts to amend section 122 should be considered as a basis for discussion. The Committee also notes that according to the Government, since its last comments, there have been no legislative changes in this regard. The Committee further notes the Government’s indication that the Federal Ministry of Industry and Labour has not been notified of any case of judicial proceedings relating to abuse by an employer of section 122.

The Committee requests the Government to keep it informed of any developments in this respect.

Direct Request (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee notes the Government’s report.

The Committee notes the Government’s statement that since its last comments, there have been no legislative changes, which would address the position of the Committee in its previous direct request.

The Committee recalls that its previous comments concerned section 122 of the Collective Labour Relations Act of 14 December 1973 (legal grounds for dismissal of workers’ representatives without prior approval of the courts in cases of grave insults against the employer). The Committee had noted that although this provision was not in violation of the Convention, it, however, might 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 might envisage taking into consideration Paragraph 6 of the Workers’ Representatives Recommendation, 1971 (No. 143), which includes in the measures to ensure effective protection of workers’ representatives, a requirement of consultation with, an advisory opinion from, or agreement of an independent body, public or private, or a joint body, before the dismissal of a workers’ representative becomes final. The Committee had noted the Government’s statement that in the course of future negotiations concerning the amendments to the law, the Federal Chamber of Labour would at any time be able to introduce the above suggestion by the Committee.

The Committee requests the Government to keep it informed of any developments in this respect.

Direct Request (CEACR) - adopted 1997, published 86th ILC session (1998)

The Committee notes the information in the Government's report.

1. Referring to section 122 of the Collective Labour Relations Act of 14 December 1973 (legal grounds for dismissal of workers' representatives without prior approval of the courts in cases of assaults on or grave insults against the employer), the Committee had noted that although this provision was not in violation of the Convention, it however might 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 might envisage taking into consideration Paragraph 6 of the Workers' Representatives Recommendation, 1971 (No. 143), which includes in the measures to ensure effective protection of workers' representatives a requirement of consultation with an advisory opinion from or agreement of an independent body, public or private, or a joint body, before the dismissal of a workers' representative becomes final.

The Committee notes the Government's statement that in the course of future negotiations concerning the amendments to the law, the Federal Chamber of Labour will at any time be able to introduce the above-mentioned proposal.

2. The Committee had also raised the fact that, according to section 117 of the Act, one member of the works council shall be released from his work with full pay only in establishments with more than 150 workers. In this respect, the Government points out that pursuant to section 116 of the Act, workers' representatives in enterprises with fewer than 150 employees are legally entitled to be granted the necessary free time to perform their duties. The Government further mentions certain other facilities granted workers' representatives under the legislation. The Committee notes this information.

Direct Request (CEACR) - adopted 1995, published 82nd ILC session (1995)

The Committee notes the information provided in the Government's latest report as well as the communication made by the National Labour Federation (NLF).

1. Instant dismissal based on criminal conviction/insults, etc.

In its previous comments, while noting the Austrian Congress of Chambers of Labour's (OAKT) indication that section 122 of the Collective Labour Relations Act of 14 December 1973 permitted workers' representatives to be dismissed without prior approval of the courts upon criminal conviction or upon committing assaults or "grave insults" against the employer, his or her family members, or against other workers in the establishment, the Committee considered that, absent any specific examples demonstrating negative application, this provision was not in violation of the Convention.

In its communication, the NLF states that, since the employer can dismiss a worker for having committed bodily assault or insult without the prior consent of the court, there is room for the employer to fabricate such accusations against a member of the works council simply in order to obstruct the performance of its duties. While the employer must inform the courts as soon as possible after the dismissal, an initial judgement in favour of the worker and calling for reinstatement may still take several months up to a year in which time sufficient damage may have already been caused to the functioning of the works council and the worker's mandate. Furthermore, according to the NLF, since the career of a works council member is put under serious threat in this respect, such cases have a catastrophic effect on employees' readiness to become involved in works councils. The NLF then provides a specific example of a works council chairperson who was dismissed without notice for allegedly having insulted a member of staff. The Government, for its part, maintains its previous position that, in the case of serious offences committed by works council members, a dismissal is justified against subsequent court consent and a worker dismissed under a fabricated offence can normally be assumed to prevail in the court proceedings of first instance, thus ensuring that the wronged worker will not have to wait an unduly long period of time to be reinstated.

The Committee reiterates its opinion that section 122 of the CLRA is not in violation of the Convention. Nevertheless, in the light of the indication provided by the NLF concerning the manner in which section 122(3) may give rise to abuse by the employer in order to interfere with the functioning of the works council, the Government might wish to envisage taking into consideration Paragraph 6 of the Workers' Representatives Recommendation No. 143 which provides that specific measures taken to ensure effective protection of workers' representatives might include a requirement of consultation with an advisory opinion from, or agreement of an independent body, public or private, or a joint body, before the dismissal of a workers' representative becomes final.

2. Representatives at small enterprises

The Committee notes from the Government's latest report that demands for a lowering of the limits for release of members of works councils were made repeatedly by the employees at the time of the last amendment to the Basic Employment Act, but were rejected by the employers so that realization was not possible. While acknowledging that account should be taken of the characteristics of the industrial relations system of a country and of the need, size and capacity of the undertakings concerned, the Committee must recall its previous comments in which it considered that the release of one works council member per 150 employees under section 117 of the Collective Labour Relations Act could not be considered a reasonable number and could not ensure that workers' representatives in small enterprises were not denied the protection and facilities laid down in the Convention. The Committee asks the Government to indicate, in it next report, any progress made to lower this limit, in consultation with the employers' and workers' organizations, so as to ensure that workers' representatives in small enterprises are afforded the protection and facilities to enable them to carry out their functions.

Direct Request (CEACR) - adopted 1993, published 80th ILC session (1993)

The Committee notes the comments concerning the application of the Convention submitted by the Austrian Congress of Chambers of Labour (OAKT).

These comments related to the alleged failure of the Government to satisfy the Convention in three areas: (1) that under Section 122 of the Collective Labour Relations Act of 14 December 1973 ("the Act"), workers' representatives may be dismissed without prior approval of the courts upon criminal conviction, or upon being found guilty of assault or "grave insults"; (2) that under the Act workers' representatives have no protection against bankruptcy of the enterprise; and (3) that a rate of one worker's representative per 150 workers under Section 117 of the Act is inadequate for small enterprises and, further, that time off is limited to an overly narrow range of issues.

The Committee notes the Government's statement that it has not violated any of the provisions of the present Convention. The Government adds, however, that it has begun consultations on the third issue with OAKT.

1. Instant dismissal based on criminal conviction/insults, etc.

The Government points out that the two categories in Section 122 of the Act under which workers' representatives may be instantly dismissed are exceptions to the general rule that they may not be dismissed without prior court approval. The two exceptions, the Government states, involve particularly egregious conduct - specifically (a) convictions requiring prison sentences of at least one year or (b) guilt of committing assaults or "grave insults" against the employer or members of the employer's family who are working or present in the establishment or against other persons employed in the establishment. In both (a) and (b), the employer is required to request authorization of a tribunal "at the earliest opportunity" after the dismissal. OAKT asserts that these exceptions prove in practice to obstruct works councils in the exercise of their mandates and that they do not satisfy the Convention.

The Committee notes that OAKT has provided no specific examples of negative applications of Section 122(5). The Committee therefore considers that, as it stands, there is no violation of the Convention.

2. Bankruptcy of the enterprise

OAKT indicates that works council representatives have been denied compensation for termination of the labour relationship upon bankruptcy of the enterprise. They allege that this denial fails to satisfy the special protection provisions of the Convention. In its report, the Government stresses that when the entire workforce is affected without distinction, as in insolvency, no discrimination occurs.

The Committee considers that there are no violations of the Convention when a bankruptcy has not been abetted by anti-union discrimination and when it affects all workers without distinction.

3. Representation at small enterprises

OAKT further points out that the release of one works council member per 150 employees (Section 117 of the Act) does not provide adequate representation to small enterprises and that workers' representatives should be permitted time off for general training in trade union activities. The Government considers that the law meets the requirements of the Convention by affording such facilities as may be appropriate in order to enable workers' representatives to carry out their functions promptly and efficiently, but states that it has begun talks regarding the 150 employee limit. The Committee recalls to the Government that it is important to apply a reasonable criterion to ensure that workers' representatives in small enterprises are not denied the protection and facilities laid down in the Convention. The Committee considers that 150 workers can on no account be considered a reasonable number. The Committee asks to be kept informed about the results of these discussions.

Direct Request (CEACR) - adopted 1992, published 79th ILC session (1992)

The Committee takes note of the Government's report. It also notes the observations of the Austrian Congress of Chambers of Labour (OAKT).

In its comments, the OAKT states that section 122(3) of the Collective Labour Relations Act of 14 December 1973, which provides that a member of the works council may be dismissed without the prior consent of the conciliation office if he has been disloyal in his services or has improperly obtained benefits from a third party, without the knowledge of the employer, constitutes in practice an effective means for employers to prevent works council members from carrying out their mandate. Accordingly, the OAKT requests that the prior consent of the conciliation office be required for all dismissals on the grounds set out in section 122.

The OAKT also requests better protection for workers' representatives in the event of bankruptcy of the enterprise, and the amendment of section 117 of the Act of 14 December 1973, which provides that in establishments with more than 150 workers one member of the works council shall be released from his work with full pay, as it considers that 150 workers is too high a number. The OAKT also considers that for members of the works council to be able to carry out their functions efficiently, they should be entitled to paid time off in which to participate in trade union activities.

The Committee will deal with these questions when it has examined the Government's observations on the above comments.

[The Government is asked to report in detail for the period ending 30 June 1992.]