a. New or Expected Developments
Due to the obligations connected with Austrian employment law, employers in Austria tend to use different possibilities for drafting contracts. Therefore, Service Agreements and Work Service Agreements are frequently used. Moreover, the amount of temporary workers (Leiharbeiter) and fixed-term employment contracts (befristete Arbeitsverträge) is increasing. However, to avoid a circumvention of the Austrian employee protection legislation, the jurisdiction is strict in applying the abovementioned criteria for the classification as a standard Contract of Employment. Additionally, there are special rules in the Austrian Temporary Employment Act (Arbeitnehmerüberlassungsgesetz) to protect temporary workers from discrimination compared with regular employees.
Jurisdiction concerning Service Agreements, Work and Service Agreements and Employ-ment Agreements.
As stated, the distinction between standard Contracts of Employment, Service Agree-ments and Work and Service Agreements depends on a case-by-case decision. The Aus-trian jurisdiction concerning the classification of doctors demonstrates this approach in an exemplary way.
Following the Austrian Jurisdiction, a doctor cannot generally be placed in one of the mentioned categories. Rather, the Jurisdiction distinguishes between the different ar-rangements of the respective contractual relationship. Therefore, a standard Employment Contract between a doctor and a hospital can only be assumed if the doctor is integrated in the organization of the hospital. The main factors here are based on the abovementioned criteria, regular working hours and official duties1.
According to the Jurisdiction, the classification as a standard employee is therefore not justified in case of an attending doctor with flexible time management2. The same is generally valid for a prison doctor. In this case, the Austrian Supreme Court stated that because of his professional duty, a doctor has to fulfill his responsibilities to the prison independently and under his sole responsibility. In particular, the classification as standard employee does not result from the restricted independence of the doctor, which is due to the security and the specific circumstances given in a prison3.
Furthermore, the contract between a doctor and his patient is generally qualified as Service Agreement4. However, if the doctor owes the patient only one specific task, the contract might be classified as Work and Service Agreement. Therefore, Austrian Jurisdiction assumes a Work and Service Agreement if the doctor’s task only includes for example, the preparation and adjustment of prosthesis5.
Jurisdiction concerning Temporary Work
Temporary work means that the employees of a temporary works agency are lent out to work for another person. In this case, the temporary work agency continues to function as the employer. The person hiring the temporary worker generally does not have to fulfill all duties of an employer. However, in exceptional cases, it might be possible that an employment agreement is concluded between the hirer and the temporary worker as well.6 Whether this is the case or not, depends on a case-by-case decision based on the abovementioned criteria for the classification as an employment contract. However, to protect the employees from a circumvention of Austrian employee protection legisla-tion, the jurisdiction is very strict in applying these criteria.
In case there is no Employment Agreement between the hirer and the temporary worker, the Austrian Temporary Employment Act must be kept in mind. That implies, amongst other things, obligations for the hirer such as compliance with safety regulations and the employer’s duty of care.
Jurisdiction concerning Fixed-Term Employment Contracts
Another way employers try to reduce the risks associated with Austrian employee protection legislation is through the use of fixed-term employment contracts. The employment agreement ends with the expiry of the term agreed upon in this case.
Therefore, the employee loses the protection against dismissal granted by Austrian leg-islation. To avoid a circumvention of these regulations, there are certain limits to fixed-term employments. On the one hand, there are limitations concerning particularly long periods of fixed terms. On the other hand, the employer is obliged to protect employees under a fixed-term contract against discriminations compared with permanent employees. Finally, the fixed-term agreement has to be objectively justified. In particular, as mentioned above, it is impermissible to string together a large number of fixed-term employment contracts without an objective justification. In this case, the agreement on a
fixed-term employment is void. Therefore, the employee may have a claim for a re-char-acterization of the contract. Again Austrian jurisdiction is very strict when it comes to the question of an objective justification. Therefore, special social or economic reasons are required to justify consecutive fixed-term contracts.
b. Recent Amendments to the Law
In 2016 the Anti-Social-Fraud Act (Sozialbetrugsbekämpfungsgesetz) came into force and serves to prevent and pursue social fraud, in particular activeness by bogus firms. With these legal regulations many actions are criminal offence, like
- withholding of contributions to the insurance institutions,
- registration at the social insurance agencies with fraudulent intent (e.g. registration knowing that the contributions will never be paid),
- organized illegal employment and undeclared work.
If there is a concrete suspicion of illegal actions, the Austrian authorities can request further information at the database for social fraud (Sozialbetrugsdatenbank), an institution at the Ministry of Finance. The main focus lies on entities within the construction industry. Therefore, a new competence center for social fraud (Kompetenzzentrum LSDB) was created. In addition to the above-mentioned activities, the catalogue of social fraud has been extended by misuse of sick leave, benefit abuse and unlawful use of the e-card (electronic administration system).