In implementation of the EU Directive of 20 June 2019 on transparent and predictable working conditions in the European Union (Directive (EU) 2019/1152), legislative amendments to Austrian labour law were passed in the national council´s session on 28 February 2024 and came into force on 28 March 2024. These amendments relate in particular to the content of service notes and employment contracts, the right to parallel employment and the assumption of training and training costs.
Service notes: Higher transparency and comprehensive information for employees
As part of the amendments to the Labour Contract Law Amendment Act (AVRAG), the statutory minimum content of service notes is expanded. In addition to the minimum content required to date, the company's registered office, a brief job description, overtime pay, the type of salary payment, the duration and conditions of the probationary period and a reference to the termination procedure have to be included. A service note will also have to be handed out "immediately" for employment relationships lasting less than one month, whereby employees may also choose an electronic form of the service note. The proposed changes should only apply to new employment contracts established after the law comes into force in order to avoid a disproportionate administrative burden by reissuing service notes that have already been issued.
These amendments are also implemented in the General Civil Code (ABGB) for independent service contractors, in the Labour Leasing Act (AÜG) for the area of staff leasing, in the Domestic Helpers and Domestic Employees Act and in the Domestic Helpers Act, as well as applying to work abroad lasting longer than one month.
Right to parallel employment
According to supreme court rulings, entering into another employment contract is already permitted in principle and may not be prohibited or restricted by the employer, provided that the parallel employment is not in breach of contract or the law from the perspective of the main employment contract and does not impair work obligations. However, the EU-Directive explicitly stipulates that employees may not be prohibited from entering another (additional) employment contract and that they may not be disadvantaged due to taking up another job.
For this reason, a right to parallel employment is established in the AVRAG. Limits should continue to exist insofar as the parallel employment is detrimental to the existing employment relationship (e.g. due to a negative impact on the main employment relationship or the performance of a competing activity) or is incompatible with working time regulations, such as in particular the maximum limits on working hours (see Section 9 Working Hours Act, AZG). Furthermore, it is expressly clarified that this provision does not interfere with the non-competition clause in Section 7 (1) Salaried Employees Act (AngG).
In this context, caution is required in particular when employing people with permanent residence abroad. The possibility of entering into another employment contract abroad could lead to a transfer of social security obligations from Austria to the EU country of residence, which is associated with additional administrative work in payroll accounting for Austrian employers due to the social security obligation abroad.
It is therefore still possible (within the legal limits) to prohibit the exercise of parallelemployment. An actual "extension" of an employee's right to take up another (parallel) employment is therefore unlikely.
Trainings as working time and payment of costs by the employer
Art 13 of Directive (EU) 2019/1152 provides for an obligation for employers to offer training to employees free of charge and to classify these trainings as working time if the employer is obliged by European Union´s or national law or collective agreements to offer training to employees in relation to the work they perform.
This provision is implemented in Section 11b AVRAG and stipulates that trainings are considered working time and have to be paid for by the employer if they are required by law, regulations, collective agreements or the employment contract for the performance of the contractually agreed work activity. Trainings required to obtain, maintain or renew a professional qualification are also covered if the employer is obliged to provide these trainings to the employee on the basis of European Union´s or national legislation (such as collective agreements).
Whether a specific training falls under the scope of Section 11b AVRAG and is therefore to be financed by the employer and participation in this training is to be considered working time, is decided on a case-by-case basis. The decisive factor is whether a specific training is required for the contractually agreed activity based on one of the legal sources mentioned in the law. In this context, the drafting of the employment contract and, in particular, the specific description of the activity(ies) agreed in the employment contract are of particular importance.
The explanatory notes state that employees may neither be invoiced for training costs nor may they be deducted or withheld from their remuneration. Regarding this condition, it is questionable whether this regulation also prevents the conclusion of a training cost-reimbursement agreement and if it also has an effect on existing agreements. There are currently divergent views in the literature on this issue, which is why it remains to be hoped that the legislator will provide more specific details or that the courts will soon make a decision.
Administrative penalties, prohibition of discrimination and protection against unfair dismissal
In connection with the new requirements regarding service notes, administrative penalties are set in order to ensure compliance with the new legal regulations. If the obligation to issue a service note is not fulfilled, fines of between EUR 100 and EUR 436 or between EUR 500 and EUR 2,000 (if more than five employees are affected or in the event of multiple violations) are imminent. An evaluation by the Minister of Labour is planned after three years.
In addition, a ban on discrimination will be introduced to protect employees who assert their claims relating to service notes, parallel employment or trainings. People who are dismissed due to such concerns should have the right to written justification of their dismissal and subsequently be able to challenge a dismissal in connection with the demand for a service note or a permissible parallel employment in court (by analogous application of Section 105(5) Labour Constitution Act, ArbVG).
Author:
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Claudia Rombold |