References
Civil Code [CC], 1811, as last amended in April 2017 (BGBl. I Nr. 43/2016) [Allgemeines bürgerliches Gesetzbuch (ABGB), available in German only]
Date:
3 Jan 1970;
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Works Constitution Act [WCA], 14 December 1973, as last amended in July 2017 (BGBl. I Nr. 104/2017)<br/>(Arbeitsverfassungsgesetz - ArbVG, available in German only)
Date:
3 Jan 1970;
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Employees (White-collar) Act [EA] of 11 May 1921, as last amended in December 2015 (BGBl. I Nr. 58/2010)<br/>(Angestelltengesetz AngG, available in German only)
Date:
3 Jan 1970;
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(view in NATLEX
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Federal Equal Treatment Act as last amended in March 2020 (BGBl. I Nr. 16/2020) [Gleichbehandlungsgesetz (GlBG)]
Date:
1 Jan 1970;
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(view in NATLEX
»)
Corporate Staff and Self-Employment Provision Act, (BGBl. I Nr. 100/2002), last amended in July 2017 (BGBl. I Nr. 107/2017) [Betriebliches Mitarbeiter und Selbständigenvorsorgegesetz]<br/>[Note: the English version only include amendments up to BGBl. I Nr. 77/2011]
Date:
3 Jan 1970;
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Workplace Protection Act as last amended in August 2017 (BGBl. I Nr. 126/2017) [Arbeitsplatz-Sicherungsgesetz (APSG)]
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Maternity Protection Act as last amended in December 2019 (BGBl. I Nr. 112/2019) [Mutterschutzgesetz (MSchG)]
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(view in NATLEX
»)
Commerce Regulation [CR] 1859, as last amended in November 2017 (BGBl. I Nr. 153/2017) [Gewerbeordnung 1859. (GewO 1859), available in German only
Date:
3 Jan 1970;
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»
Federal Act establishing parental leave for fathers (Paternity Leave Act – VKG) as last amended in December 2019 (BGBl. I Nr. 112/2019) [Väter-Karenzgesetz (VKG)]
Date:
3 Jan 1970;
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(view in NATLEX
»)
Employment of Persons with Disabilities Act [Behinderteneinstellungsgesetz (BEinstG)] (BGBl. No. 22/1970).
Date:
3 Jan 1970;
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(view in NATLEX
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Scope
Size of enterprises excluded (≤): 5
The Works Constitution Act (which lays down the general protection on dismissal) applies to all work contracts (private sector) but the provisions regulating the special protection regarding individual dismissal only apply to undertakings with at least 5 employees – and there are specificities as to how those 5 employees are counted.
The definition of collective dismissals excludes enterprises with less than 20 workers: sec. 45a Labour Market Promotion Act.
Workers' categories excluded: civil/public servants, agricultural workers, domestic workers, police, army, managerial / executive positions
The CC, WCA and WC Employees Act are the main acts considered for this review.
On categories excluded, see: sec. 33 WCA.
Sec. 36 (2) WCA : managers and directors.
There are specific acts regulating employment conditions of specific categories of workers such as journalists, actors (Journalist Act, Theatrical Artists Act)
FTC regulated: Yes
Valid reasons for FTC use: no limitation on first FTC
No specific reason required for resorting to a FTC for the first time.
See however OECD employment protection legislation database, Austria, 2013: "a succession of FTC will automatically result in an open-ended employment contract of indeterminate length unless objective and material reasons can be shown to justify the need to renew a fixed-term contract", (available at www.oecd.org/els/emp/oecdindicatorsofemploymentprotection.htm).
Maximum number of successive FTCs: no limitation
Subject to courts' ruling on the lawfulness of chain contracts.
Courts consider successive FTCs only as lawful if there are specific social or economic reasons justifying it. Unlawful successive FTCs would result in a work contract of undetermined duration.
Maximum cumulative duration of successive FTCs: no limitation
Subject to courts' ruling on the lawfulness of chain contracts.
% of workforce under FTC: 7.9
Source: Eurostat, as of third trimester 2016.
The figure refers to the percentage of employee with a contract of limited duration (= temporary job) of total number of employee aged 15-74 years.
Eurostat data are based on the following definition:
"A job may be considered temporary if employer and employee agree that its end is determined by objective conditions such as a specific date, the completion of a task or the return of another employee who has been temporarily replaced (usually stated in a work contract of limited duration). Typical cases are: (a) persons with seasonal employment; (b) persons engaged by an agency or employment exchange and hired to a third party to perform a specific task (unless there is a written work contract of unlimited duration); (c) persons with specific training contracts."
Maximum probationary (trial) period (in months): 1 month(s)
1 month for white-collar workers: see sec. 19 White-Collar Employees Act.
Note: The probationary period for blue collar workers is governed by sec. 1158(2) ABGB as amended by collective agreements.
Most collective agreements have amaximum trial period of 1 month.
Obligation to provide reasons to the employee: No
Valid grounds (justified dismissal):
Prohibited grounds: marital status, pregnancy, maternity leave, family responsibilities, filing a complaint against the employer, race, colour, sex, sexual orientation, religion, political opinion, age, trade union membership and activities, performing military or civil service, ethnic origin
Under the Federal Equal Treatment Act, are prohibited in connection with dismissals, discrimination on the grounds of sex (including marital and family status), ethnicity, religion, age and sexual orientation (sec. 3 (7) and 17 (1) 7)).
On pregnancy and maternity leave, see: Maternity Protection Act, sec. 10.
In addition, sec. 105 (3) 1) WCA provides a list of inadmissible reasons for dismissals: trade union activities (and assimilated: works council members, health and safety representatives..), absence as a consequence of military or civil service, filing a complaint against the employer (well-founded claims in respect of entitlement or benefits arising out of the employment contract).
When contested before the Court, the judge will assess the existence of prohibited grounds for dismissal or whether it consititutes an unfair dismissal (verpönte Kündigungsmotive or sozialwidrige Kündigungsmotive).
Workers enjoying special protection: workers' representatives, pregnant women and/or women on maternity leave, workers with family responsibilities, older workers/workers on the verge of retirement, workers with disabilities, workers performing military/alternative service
The following categories can only be dismissed with prior authorization from the court and only under specific grounds:
* Pregnant women and women on maternity leave: sec. 10 Maternity Protection Act (as an exception to the general prohibition of dismissal);
* Employees on parental leave: sec. 7 and 8f Parental Leave Act and 10 Maternity Protection Act (furthermore, even if an employer terminates a pregnant women on the grounds other than her pregnancy for up to 4 months after she gave birth, the female employee who is dismissed only has to prove the probability that the termination was actually due to the pregnancy, so as to invalidate the termination, sec. 10 8) Maternity Protection Act)
* Works council members: sec. 120 to 122 WCA;
* Employee performing military service or alternative service (see sec. 12 (1) APSG; protection requires that the worker notifies the employer once receiving the draft order; dismissal is possible with prior consent by a court).
In addition, dismissal of a disabled worker requires the prior consent of the invalidity board (sec. 8, Disabled Persons Act).
Lastly, an employer who intends to terminate an older worker's contract with a tenure of more than 2 years is required to take social aspects (difficulties in finding a job) into account (sec. 105 3) 2. b) WCA). This does however not apply to workers who have started working for the employer after they have turned 50 (sec. 105 3b) WCA).
Notification to the worker to be dismissed: no specific form required
No specific form required in the legislation.
Notice period:
- White-collar workers:
Sec. 20 (2) White-collar Employees Act:
In the absence of an individual agreement that is more favourable for the employee , the notice period is 6 weeks which increases with the length of service (2 months after 2 years of service, 3 months after 5 years, 4 months after 15 years and 5 months after 25 years).
- Blue-collar workers:
The notice period is 14 days in the absence of any other arrangement: sec. 77 Commerce Regulations (for industrial workers).
- See also: sec. 1159 and 1159b CC: minimum 14-day notice unless the employee is paid on a daily basis or by piece-rate, in which case only one day's notice needs to be given.
white-collar workers:
white-collar workers:
- white-collar workers: 6 week(s).
blue-collar workers:
blue-collar workers:
- blue-collar workers: 14 day(s).
workers paid on a daily basis or by piece-rate:
workers paid on a daily basis or by piece-rate:
- workers paid on a daily basis or by piece-rate: 1 day(s).
white-collar workers:
white-collar workers:
- white-collar workers: 6 week(s).
blue-collar workers:
blue-collar workers:
- blue-collar workers: 14 day(s).
workers paid on a daily basis or by piece-rate:
workers paid on a daily basis or by piece-rate:
- workers paid on a daily basis or by piece-rate: 1 day(s).
white-collar workers:
white-collar workers:
- white-collar workers: 2 month(s).
blue-collar workers:
blue-collar workers:
- blue-collar workers: 14 day(s).
workers paid on a daily basis or by piece-rate:
workers paid on a daily basis or by piece-rate:
- workers paid on a daily basis or by piece-rate: 1 day(s).
white-collar workers:
white-collar workers:
- white-collar workers: 2 month(s).
blue-collar workers:
blue-collar workers:
- blue-collar workers: 14 day(s).
workers paid on a daily basis or by piece-rate:
workers paid on a daily basis or by piece-rate:
- workers paid on a daily basis or by piece-rate: 1 day(s).
white-collar workers:
white-collar workers:
- white-collar workers: 3 month(s).
blue-collar workers:
blue-collar workers:
- blue-collar workers: 14 day(s).
workers paid on a daily basis or by piece-rate:
workers paid on a daily basis or by piece-rate:
- workers paid on a daily basis or by piece-rate: 1 day(s).
white-collar workers:
white-collar workers:
- white-collar workers: 3 month(s).
blue-collar workers:
blue-collar workers:
- blue-collar workers: 14 day(s).
workers paid on a daily basis or by piece-rate:
workers paid on a daily basis or by piece-rate:
- workers paid on a daily basis or by piece-rate: 1 day(s).
white-collar workers:
white-collar workers:
- white-collar workers: 4 month(s).
blue-collar workers:
blue-collar workers:
- blue-collar workers: 14 day(s).
workers paid on a daily basis or by piece-rate:
workers paid on a daily basis or by piece-rate:
- workers paid on a daily basis or by piece-rate: 1 day(s).
Pay in lieu of notice: No
No statutory provision.
ILO country profile - termination of employment - on Austria: In current court practice, when the mandatory notice period is not respected, the dismissal is treated as an "unfounded premature dismissal" and the employee is entitled to wages he would have received had the regular notice period been respected.
Notification to the public administration: No
Notification to workers' representatives: Yes
Sec. 105 (2) WCA
Prior notification to and consultation with the works council, which has 5 days to react. Whether or not the council has objected to the dismissal or has dealt with the case on time affects the possibilities to lodge an appeal, but does not prevent the dismissal from taking effects. However, the procedure is rather complex. For further details, see relevant provisions.
Approval by public administration or judicial bodies: No
Approval by workers' representatives: No
Definition of collective dismissal (number of employees concerned) Within a period of 30 days, at least:<br/>1) 5 employees in undertakings with 21 to 99 employees;<br/>2) 5% of employees in undertakings with 100 to 600 employees;<br/>3) 30 employees in undertakings with more than 600 employees;<br/>4) 5 workers over the age of 50.<br/>
Sec. 45a Labour Market Promotion Act.
Notification to the public administration Yes
Sec. 109 (1) and (2) WCA
Notification to trade union (workers' representatives) Yes
At least 30 days before the first notice of termination is served to an employee (Sec. 45a Labour Market Promotion Act).
Notification to workers' representatives: Yes
Sec. 109 (1) and (2) WCA
Approval by trade union (workers' representatives) No
Approval by workers' representatives No
Priority rules for collective dismissals (social considerations, age, job tenure) No
No rules on the determination of selection criteria in the legislation reviewed. Selection criteria are only referred to in sec. 109 (1) as one of the element to be transmitted to the works council within the framework of the notification and consultation process.
Employer's obligation to consider alternatives to dismissal (transfers, retraining...) No
No statutory provision in the legislation reviewed.
Priority rules for re-employment Yes
Sec. 109 (2) WCA: The council may make proposals for the prevention, elimination or mitigation of the adverse effects of redundancies.
Note: In undertakings with more than 20 permanent employees, when the proposed measures would affect a significant part of the workforce, the works council may request the conclusion of a social plan (sec. 109 (3) WCA)
: 0 month(s)
: 0 month(s)
: 0 month(s)
: 0 month(s)
: 2 month(s)
: 3 month(s)
: 4 month(s)
: 9 month(s)
:
Same as severance pay (no specific provision for economic dismissal)
: 0 month(s)
: 0 month(s)
: 0 month(s)
: 0 month(s)
: 2 month(s)
: 3 month(s)
: 4 month(s)
: 9 month(s)
mine workers: Yes
Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):
Application of the general civil law rules on damage compensation: reimbursement of actual loss of earnings between dismissal and ruling.
managerial / executive positions: Yes
Sec. 105 WCA. No reinstatement as such. However, if the Court finds the dismissal unlawful, it will declare it void and therefore the employment relationship continues.
police: No
Sec. 105(4) WCA and 50 (1) Labour and Social Court Act.
Existing arbitration: Yes
Chapter 4 Code of Civil Procedure as amended by the New Arbitration Law 2013 ("Schiedsrechts-u00c4nderungsgesetz").