Austria – agediscrimination.info

Prior to ratification of Directive 2000/78/EC of 27 November 2000 there was no protection against age discrimination in Austria, except for the general protection against unfair dismissal found in § 105 of the Labour Constitution Act (Arbeitsverfassungsgesetz, ArbVG) which simplified the burden of proof for older employees. The Directive was implemented into Austrian national law by the Equal Treatment Act (Gleichbehandlungsgesetz, GlbG). Most parts of the Directive were incorporated into the law in identical terms, except for the terms providing additional protection for ethnic minorities.

Civil servants of the federal government are protected by the Federal Equal Treatment Act (Bundes-Gleichbehandlungsgesetz, B-GlBG), which is practically identical to the Equal Treatment Act; further laws exist for civil servants of the provincial government. Agricultural workers are protected by Anti-Discrimination Acts that were enacted at the provincial level for jurisdictional reasons (Landes- Antidiskriminierungsgesetze).

The Equal Treatment Act and the Federal Equal Treatment Act came into force on 1 July 2004. The separate laws for agricultural workers became effective in the first half of 2005 and the provincial anti-discrimination laws became effective (for the most part) in the second half of 2004.

In Austria, both direct and indirect discrimination are prohibited in connection with recruitment, wages and salaries, voluntary social benefits, vocational training, promotion, conditions of employment and termination of employment. Harassment is also prohibited, as is the failure on the part of an employer to take steps to prevent harassment. Both older and younger employees are protected from age discrimination.

Unequal treatment may be justified within the terms of § 20 of the Equal Treatment Act, which is identical to Art. 6 of the Directive: such unequal treatment must be objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives, and the means of achieving that aim must be appropriate and necessary.

Who’s covered?

The Equal Treatment Act covers all kinds of employees, i.e. blue-collar and white-collar workers, whether they have just been hired or have been employed for longer. An employee is defined under Austrian law as one who performs services under the control of his or her employer and is in particular bound by instructions about his or her place of work, working hours and work-related activities.

Where their positions are not on the list of ministry-approved traineeships and they do not perform their services under the contract of their employer, trainees are not considered to be employees. So, although they are explicitly protected from discrimination in terms of having access to training contracts, trainees are not protected from age discrimination during the course of their work.

Self-employed people are generally not protected from discrimination. However, so-called “free employees” (freie Dienstnehmer) are generally protected. These workers are similar to the self-employed in terms of having greater flexibility in determining their work conditions, but resemble true employees in terms of their economic dependency.

No person may be directly or indirectly discriminated against in the context of an employment relationship on the grounds of his or her ethnic origin, religion or belief, age or sexual orientation. Nor may anyone be directly or indirectly discriminated against on these grounds in the context of access to career counselling, vocational training, membership of professional associations (trade unions, Chamber of Labour, etc) or the fulfilment of criteria to become self-employed.

What enforcement/remedies exist?

A fine up to 360 Euros can be imposed for violations of the Equal Treatment Act, and the victim of discrimination can claim damages from the employer for financial loss and – except in cases of discriminatory dismissals – for personal hardship. The claim for compensation is limited to 500 Euros if the employer can prove that the damage sustained by the applicant as a result of the discrimination was only the employer’s refusal to consider his or her job application. If the discrimination resulted in a lower monthly salary, the difference would be awarded as damages. If the employer unjustifiably failed to promote the employee, the employee can claim the difference between the lower and higher salaries for 3 months if he or she would have been promoted; and 500 Euros if not.

Claims for personal hardship amount to at least 400 Euros in cases of harassment. The employee can contest a dismissal if he can provide evidence that there has been a violation of the Equal Treatment Act; the employer has to prove the contrary.

How common are claims?

After enactment of the Equal Treatment Act, an Equal Treatment Commission was established. So far the commission has received 129 enquiries about discrimination on the grounds of age, representing some 16 % of the overall number of enquiries. Although this number is quite small compared to the number of enquiries regarding sexual harassment (5,775), it is increasing.

Since 1 July 2004 five claims of age discrimination were lodged at the Equal Treatment Commission. Two of them – one regarding recruitment and termination of employment, and the other one regarding harassment and the employer’s failure to take preventive steps – were withdrawn. In one claim (about recruitment) discrimination was held to have taken place while in another (about termination of employment) it was not. The last of the five claims has yet to be decided.

What claims are most common and what are trickiest issues for employers?

Few claims are to be expected concerning discriminatory dismissals, since most employees are already protected against unfair dismissal under the terms of § 105 of the Labour Constitution Act (Arbeitsverfassungsgesetz, ArbVG). Employees can contest an unfair dismissal if has an adverse impact on their fundamental interests, and the court will rule the dismissal invalid if the employer cannot offer sufficient objective or subjective justification.

In future, legal provisions against age discrimination are more likely to be applied to cases involving the dismissal of a person who is excluded from the scope of § 105 ArbVG and thus not generally protected against unfair dismissal. Amongst those excluded from this protection are senior executives with significant responsibility for staff, and managers of incorporated entities (especially Managing Directors of limited liability companies (LLC) and members of the Board of Directors of registered cooperative societies). These two groups are in fact employees to whom the provisions of the Equal Treatment Act apply. Until now, such managers had no protection from dismissal whatsoever; in the future, however, employers will need to be aware that, for example, the 55-year-old Managing Director of an LLC who is dismissed and replaced by a 40-year-old might successfully bring action in court against his or her dismissal on the grounds of age discrimination.

Other than that we expect most claims of discrimination to occur in areas where there is no legal protection beyond that offered in the Equal Treatment Act, which covers recruitment, monthly salary, voluntary social benefits, vocational training, promotion, conditions of employment and harassment.

Are there any specific exceptions in your laws?

Differences in treatment do not constitute discrimination on the grounds of age if they are objective and appropriate and justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives, and where the means of achieving that aim are appropriate and necessary. If any provision of a statute or a collective bargaining agreement meets these conditions, it may provide for age-based differences (e.g., in benefits or payments) and place older employees or other persons in a better or worse position than others.

However, since this represents an exception from the protection otherwise offered, strict criteria apply as regards justification and validity. For example, the minimum income set by the provisions for supplementary pension contributions (Ausgleichszulage) and for social benefit payments (Sozialhilfe) is the same for men and for women regardless of their age. There are, however, some admissible age-based limitations for military and police personnel. There are also some other provisions which discriminate on the basis of age, for example:

1. Direct unequal treatment:

– the official retirement age for women is five years lower than that for men. This difference will be slowly phased out by 2028, so that by 2033 the retirement age for both women and men will be 65.

2. Indirect discrimination:

– collective bargaining agreements often exclude interns and volunteers, which especially impacts on young people;

– the salary scales of collective bargaining agreements provide for regular pay increases on the basis of the length of service alone, so that older employees usually earn more for the same work than their younger colleagues.

Retirement ages

There is no fixed retirement age in Austria, except for civil servants and judges. The right to pension payments depends not only on one’s age but also on having a certain number of years of contributing employment. While early retirement before the officially defined age of retirement is generally possible, monthly pension payments decrease as a result.

If an employee is dismissed because (s)he has reached the official retirement age, the employer need justify the dismissal only if the employee contests it. However, once the employee is of retirement age and has enough years of contributing service to receive full pension payments, he or she will have difficulty contesting the dismissal; even if he or she can demonstrate that the dismissal impinges on fundamental interests the employer may still prove that the dismissal is justified, either for reasons relating to the person of the employee or for business reasons.

Interesting cases

Since ratification of the Directive in July 2004, there have been no cases in Austria significant enough to reach the Supreme Court. However, there was an interesting decision relating to a 56-year-old pilot who was dismissed on the grounds of his age alone. The court denied his claim based on § 105 ArbVG because he his earnings were too high, so he based his claim on discrimination. This was also denied because the notice of termination was dated May 2003, prior to ratification of the Directive in Austria. If the same case were to come to court today, the pilot’s termination would probably be seen as discriminatory and ruled invalid.