A (holiday) internship can be structured as a regular employment contract or as an internship . In the case of an employment contract, all provisions of labor law, including any relevant collective bargaining agreement, must be applied. An internship, on the other hand, is more flexible and can be designed more individually, in particular due to the lack of an actual duty to work and the absence of instructions.
Predominance of the educational purpose
An internship primarily serves the interest of the intern so that he can acquire practical knowledge and skills. The purpose of the training therefore outweighs the interest of the owner of the enterprise in work performance for his enterprise.
In principle, interns perform tasks that do not serve their training purpose only to a negligible extent. Likewise, interns enjoy greater freedom in the timing of their presence in the company and are not subject to any work obligation, which is why there is generally no claim to remuneration from the company owner. Nevertheless, the applicable collective bargaining agreement should always be consulted, as its scope of application may also include interns and may provide for a claim to remuneration.
Labor law specifics
However, if certain criteria are met, an internship can constitute a regular employment relationship. For the entrepreneur, this means that the intern has the status of an employee in the sense of labor law and is therefore subject to labor law regulations (in particular vacation entitlement and continued payment in case of illness) as well as the applicable collective agreement and must also be registered for social insurance.
Decisive for the existence of an employment relationship are the obligation to follow the instructions of the employer, the personal duty to work, the organizational integration into the company and an entitlement to remuneration. If these characteristics predominate, one speaks of a (mostly temporary) employment relationship in the classical sense. As a rule, typical holiday jobs for schoolchildren or students in the summer months are therefore regular, albeit temporary, employment relationships.
Whether the "internship" is contractually designated as an internship, traineeship, apprenticeship e.g. is irrelevant. The decisive factor is always an overall consideration of the actual circumstances. In this case, the burden of proof lies with the employer, since the existence of an internship or traineeship is not presumed in case of doubt. It is advantageous to have a written agreement between the employer and the intern/volunteer stating the rights and obligations of the intern as well as the details of the working conditions. In any case, these contractually agreed conditions should actually be implemented in this form. If a trainee replaces an employee during the latter's vacation time and if the criteria characteristic of an employment relationship are present during this time, such an employment relationship exists in any case according to the jurisdiction (RS0029510).
Volunteer
Volunteers are persons who work in the company exclusively for the purpose of expanding and deepening practical knowledge and skills without any obligation to work and without any entitlement to remuneration. This is a voluntary form of further training. Characteristics such as freedom from instructions, not being bound to company working hours, not being integrated into the employer's organization, not being obliged to work and not being entitled to remuneration characterize a traineeship. If these criteria are met, the trainee does not have the status of an employee in the sense of labor law, which means that labor law, statutory regulations and collective bargaining agreements do not apply. However, the Employment of Children and Adolescents Act for Minors (Kinder- und Jugendlichen-Beschäftigungsgesetz, KJBG), the Employment of Foreign Nationals Act (Ausländerbeschäftigungsgesetz, AuslBG) and the Employee Protection Act (ArbeitnehmerInnenschutzgesetz, ASchG) must always be observed.
It should be noted that even in the case of unpaid voluntary work, a report must be made to AUVA (Allgemeine Unfallversicherungsanstalt) and an accident insurance contribution must be paid. If an "allowance" is agreed for the volunteer, registration with the competent health insurance institution (ÖGK) must be carried out - depending on the amount of this allowance, either as an (only) accident-insured employee (up to a monthly amount of EUR 500.91 in 2023) or as a fully insured employee.
Authors:
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Claudia Rombold |
Franziska Waltersdorfer |
Contact:
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Claudia Sonnleitner |
