A recent decision by the Austrian Supreme Court has clarified a long-standing question on the use of temporary workers.
According to the works constitution law until now there was consensus that, in principle, temporary workers should be counted as part of a company's core workforce. However, it was unclear from exactly what date this would be the case. The question is relevant because it helps determine a number of factors in connection to works councils -- the number of works council members to be elected, the works council election itself, or when the employer's works council agreements apply to them.
The number of works council members to be elected depends on the number of workers employed in the company on the date in question. If, for example, the number of employees is 45, three works council members must be elected; if it is 55, the number of works council members increases to four.
The key date is the meeting when the works council election committee is selected. Temporary workers who are working in the company at this time should be counted as employees. The Austrian Supreme Court has now clarified that this applies irrespective of how long a worker has been employed by the company. Previously the Supreme Court only had to judge cases in which temporary workers had been employed for a longer period, and the consensus was that "permanently" (e.g., 6 months or longer) leased workers were part of the workforce. It was always questionable whether the level of employment on a certain reference date was the decisive factor. The Supreme Court has now answered this question and stated that the only thing that matters is how many leased workers are employed on the cut-off date; how long they have been employed is irrelevant.
The current decision is important not only for temporary workers, but for all companies using temporary workers:
- If a new works council is to be elected, the leased workers should be counted as part of the workforce, regardless of how long the temporary employment has already lasted or is to last. The more temporary workers currently being employed, the larger the works council.
- Temporary workers can vote in the works council elections.
- In principle, works agreements apply immediately to temporary workers.
