1 August 2019
The Austrian legal system seeks to encourage employers to treat their employees equally. The Equal Treatment Act and the Disability Employment Act protect workers against direct or indirect discrimination on grounds of sex, ethnicity, religion, age, sexual orientation or disability.
Enforcement does not require the employee to prove these grounds, but the claimant must convince the judge that discrimination is more likely than the argument put forward by the employer.
In order to create more transparency in remuneration within companies, employers must publish income reports every two years (compared to the annual reporting requirements for the UK). These rules seek to throw light on the impact of Austria's strong collective agreement culture. In other countries, case law shows how these agreements can often have a discriminatory impact.
The reports do not show the individual income of the employees, but instead how many women and men are classified in the collective agreement groups, and how high the average salary of women and men in the respective groups is. Job announcements must also be gender-neutral, and the minimum wage and willingness to over pay (the voluntary higher level of pay according to collective bargaining agreements) must be stated.
Since 1 January 2018, listed companies and privately-held companies with more than 1,000 permanent employees have been obliged to have a gender quota of 30 percent on supervisory boards.
However, there are some exceptions. For example, if fewer than six capital representatives sit on the supervisory board, or if less than 20 percent of the workforce is female. The quota requirement only applies to new appointments. If no woman is found, the position remains vacant (known as "empty chair").
Part-time workers must not be disadvantaged in relation to full-time workers because of their employment type, unless there is a legitimate reason for the unequal treatment.
If a full-time position becomes vacant in the company, the employer is also obliged to inform part-time employees of the new position. Since many women tend to be employed part-time, this particularly protects women against discrimination based on sex.
In January 2019, the Austrian Supreme Court ruled that it is discriminatory for employers to require certain hairstyles if they distinguish by gender (for example, requiring men to have short hair but women's hair to be tied up). This is on the basis that there is no objective reason why only women should be allowed to wear their hair long.
Only recently, the Supreme Court applied the fundamental right of equal treatment to relations between private individuals. A clause was included in a company's governing rules which allowed shares to be inherited solely by male descendants. The Supreme Court declared the clause immoral and annulled.
The Court justified the decision under the principle of equal treatment, which in this case prevails over the protection of property. The special finding of this case is the applicability of the fundamental right of equal treatment between private individuals and not only vis-à-vis the state. This therefore has relevance for the relationship between employers and employees.
Religious equality is another theme in Austrian law. On 22 January 2019, the ECJ ruled that the Austrian holiday regulation regarding Good Friday was discriminatory, on the grounds that Good Friday was only a public holiday for members of four churches. If they worked on Good Friday, the members of those four churches received double salary, while employees of other religions or atheists were not entitled to such a payment.
The Austrian legislature abolished this unequal treatment by granting each worker a "personal day's leave" instead. However, the total number of holidays did not change. It is now possible for every employee to unilaterally determine when to take one day of their total holiday entitlement, whereas the remaining holiday allowances have to be mutually agreed with the employer.
Three months prior notification is necessary to be eligible for the "personal day's leave". However, if an employer asks an employee to work on this day and the employee voluntarily does so, the employee is entitled to double salary.
That said, the ECJ has not yet applied this rule to all public holidays. For instance, members of the Jewish faith are still entitled to a paid day off on Yom Kippur (Day of Atonement). It remains to be seen whether this will become the subject of court proceedings in the near future.
The government plans to review discrimination against women in collective agreements. It wants to standardise income reports nationwide in order to create better income transparency. There are also plans to set up a council for persons with disabilities, as an official advisory body for the federal government.
Whilst no proposals for the implementation of these plans have yet been published, the government's focus is very much on improving equality and diversity in the workplace.
by multiple authors
by multiple authors