For many school pupils and students, the summer months open the doors to new professional experiences and opportunities. Internships or traineeships offer the chance not only to take first insights into working life, but also to develop personally and test their expertise in practice. But what is the difference between a regular (holiday) internship and voluntary service? And when does an employment relationship arise? These questions shed light on aspects of labour law and social security law that need to be considered.
Educational purpose as an essential characteristic of an internship
As an internship primarily serves to acquire knowledge and skills and not to perform work, there is generally no obligation to work or pay. If there is already partial accident insurance cover as a pupil or student, this is generally considered to be an occupational internship and the employer does not have to register for social insurance (provided no remuneration is paid). Neither the genuine intern nor the volunteer qualifies as an employee in the sense of labour law.
Legal peculiarities
Adolescents may only be employed during the holidays if they are at least 15 years old and have completed compulsory education (9th grade). If these requirements are not met, they are children within the meaning of the Child and Youth Employment Act (KJBG) and employment is generally excluded.
If certain characteristics are present, an internship can constitute a regular employment relationship. For the employer, this means that the intern fulfils the status of an employee within the meaning of labour law and is therefore subject to the provisions of labour law (in particular holiday entitlement and continued payment of remuneration in the event of illness) as well as any applicable collective agreement and must also be registered for social insurance. Regarding working hours and rest periods, the legislator provides for stricter regulations in the form of stricter working time limits, stricter rest regulations and a general ban on working on Sundays, public holidays and at night.
Decisive for the existence of an employment relationship are, above all, characteristics such as the obligation to follow instructions, the personal obligation to work, the organisational integration into the company and the entitlement to remuneration. If these characteristics predominate, this is referred to as a (usually fixed-term) employment relationship in the classic sense. Typical holiday jobs for school pupils or students in the summer months therefore generally constitute regular, albeit temporary, employment relationships.
Attention - risk of reclassification: Whether the ‘internship’ is contractually labelled as an internship, traineeship, voluntary service or similar is irrelevant. The decisive factor is always an overall assessment of the actual circumstances. The burden of proof lies with the employer, as in case of doubt it is not assumed that an internship or traineeship exists. It is advantageous to have a written agreement between the employer and the intern or trainee in which the rights and obligations of the intern and the detailed working conditions are set out. These contractually agreed conditions should also be implemented in any case. According to the case law of the Supreme Court (RS0029510), if a trainee replaces an employee during the latter's holiday period and the criteria characteristic of an employment relationship are met during this time, an employment relationship exists in any case.
Speciality: Voluntary Service
Volunteers are persons who work in a company solely for the purpose of expanding and deepening their practical knowledge and skills without any obligation to work and without any entitlement to remuneration. This is voluntary further training. Characteristics such as freedom from instructions, no commitment to company working hours, no integration into the employer's organisation, no obligation to work and no entitlement to remuneration characterise a traineeship. If these criteria are met, there is no employee status within the meaning of labour law, meaning that labour law, statutory and collective agreement regulations do not apply. However, the Child and Youth Employment Act (KJBG), the Foreign Nationals Employment Act (AuslBG) and the Employee Protection Act (ASchG) must always be observed.
It should be noted that even unpaid voluntary work must be reported to the AUVA and accident insurance contributions must be paid. If a ‘pocket money’ is agreed for the volunteer, registration must be made with the responsible health insurance provider (ÖGK - Austrian health insurance fund) - depending on the amount of the pocket money, either as a marginally employed person with accident insurance only (up to a monthly amount of EUR 518.44 in 2024) or as a fully insured employee.
Author:
Franziska Waltersdorfer franziska.waltersdorfer@bdo.at +43 5 70 375 - 8108 |
