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12 December 2018
Unlike many other countries across Europe, Austria has no ingrained strike culture. Industrial conflicts are not counted by the number of strike days, but rather by the number of seconds that each employee strikes. Over the past few decades, the average strike action per employee has been far below one minute. In other words, based on a long-term average, only two working days per 1,000 employees are lost due to strikes. Only Switzerland has a lower propensity to strike during industrial conflicts. In comparison, Germany has lost 20 working days to strikes over the same period, and France has lost 123 working days (ie, 60 times more than Austria) to strikes.
It is widely understood that the Austrian concept of 'social partnership' (ie, the Austrian system for cooperation between the two sides of industry) has largely contributed to peaceful industrial relations, despite claims that this social partnership has evolved into a much too powerful shadow cabinet.
More recently, the parties to this social partnership (ie, the Chamber of Commerce (representing employers) and labour unions (representing employees)) have entered into a more strained relationship, fuelled by recent legislation which has introduced working time models usually negotiated by the social partnership in connection with collective bargaining agreements and, at the plant level, by the works council with their employers (for further details see "Parliament passes new Working Time Act").
In light of this shift, it came as no surprise that metal workers, backed by their respective unions, instigated warning strikes when their annual wage negotiations reached a stalemate. The social partnership finally agreed on a new collective bargaining agreement for the metal industry. However, negotiations in several other trades and industries have followed, and in a less constructive atmosphere, further strikes may be on the way.
More surprising, Austria not only has a weak strike culture, but until recently also lacked a statutory framework that expressly permitted strikes.
Absent any case law clarifying the core legal issues regarding strikes, legal scholars have historically held that Austria has opted for 'active neutrality' when it comes to strikes. While not expressly affording a right to strike, Austria abolished penalties for striking approximately 150 years ago. Further, Austrian law contains regulations which seek to ensure that adversaries to an industrial conflict are on a level playing field.
In particular, there are statutes that prohibit:
Conversely, unemployed individuals who refuse to work in a strikebound company are eligible to receive unemployment benefits, because such a refusal does not amount to indolence.
The rationale behind the above regulations is to allow the state to refuse to finance industrial disputes, while encouraging more balanced disputes.
This said, although Austrian legislation almost turns a blind eye on the settlement of industrial conflicts through strike, it is a common understanding among legal scholars (and the Supreme Court) that a strike is not always lawful. However, unlike in Germany, where the courts have developed a multi-prong test to determine whether a strike is lawful, the limits are somewhat murkier in Austria. In short, Austrian law prohibits:
However, Austrian law permits:
Strikes and breach of employment contract
Until recently, it was widely held that strikes (a collective action) and individual breaches of contract should be viewed separately – the so-called 'separation theory'.
As such, the courts have historically allowed employers to summarily dismiss striking employees with immediate effect. Refusing to work without a justified reason was sufficient grounds for dismissal because there was no right to strike.
In reality, cases such as these were rarely heard by the courts, as the social partners would agree on how to settle any damages, including the re-instatement of dismissed employees.
However, much of this has recently changed.
While Austria has refused to ratify Article 6 of the European Social Charter, this is now moot.
Article 28 of the EU Charter of Fundamental Rights (CFR) contains a right to collective bargaining and a right to take collective action, including strikes. The CFR applies in Austria.
Article 28 is at least partly rooted in Article 11 of the European Convention on Human Rights, which has constitutional ranking in Austria. Recent European Court on Human Rights case law sufficiently implies a right to take part in industrial actions under Article 11. The Austrian courts – in particular, the Constitutional Court – must consider this interpretation of Article 11 in their rulings.
The Constitutional Court has also clarified that it will treat the fundamental rights under the CFR as constitutional rights. As such, the court has already indirectly confirmed a right to industrial action under the CFR.
As a result, Austrian law cannot be said to ignore the right to strike. To the contrary, the right to strike is set out in the Constitution and, based on the CFR and the European Convention on Human Rights, this right is not restricted to labour unions; it is a right afforded to all employees as well.
As employees have a right to partake in industrial actions, it cannot be held that these actions breach their employment contracts.
In light of this recent shift, the separation theory no longer applies and a theory of unity has instead been introduced.
Although recent collective negotiations by the social partners do not bode well for their future relations, it is a positive development that the legal foundations of their industrial actions during social conflict are now put on a reliable legal footing.
For further information on this topic please contact Jakob Widner at Graf & Pitkowitz Rechtsanwälte GmbH by telephone (+431 401 17 0) or email (email@example.com). The Graf & Pitkowitz website can be accessed at www.gpp.at.
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