Published on 16 October 2024
When notice periods for blue-collar workers were harmonised with those for white-collar workers in 2017, an exemption was included in section 1159(2) of the Austrian Civil Code: collective agreements may stipulate deviations from the rule, in particular shorter notice periods, in sectors where seasonal businesses predominate. If that condition is met, the parties to collective agreements are free to set out exceptions from the legal provisions for the sector. They may therefore shorten the statutory notice period of at least six weeks and at most five months.
Since then, section 1159(2) of the Civil Code has been the subject of several court cases, mostly between social partner organisations. In 2022, the Austrian Supreme Court ruled that the new provision in section 1159(2) of the Civil Code did not supersede differing rules in existing collective agreements when it entered into force (9 ObA 116/21f).
In another ruling, the Austrian Supreme Court clarified the concepts of sector and seasonal business. It rejected the petition of the claimant, a union, on the grounds that it was unclear whether or not seasonal businesses predominated in the hospitality sector (9 ObA 137/21v). Although the social partner organisations supplied copious amounts of data, a predominance in number of seasonal businesses, the precondition for regulating notice periods in a collective agreement, could not be established.
In 2024, the Constitutional Court of Austria also examined section 1159(2) of the Civil Code. The Austrian Supreme Court, as well as regional courts and higher regional courts, had petitioned the Constitutional Court to repeal the new provision in 1159(2) of the Civil Code as unconstitutional. They argued that since the union and the Austrian Economic Chamber had been unable to supply the data necessary to prove or disprove the predominance of seasonal businesses, it would be unreasonable to expect individual workers and employers to do so. While the Constitutional Court conceded that proving the predominance of seasonal businesses in a sector may pose substantial factual difficulties, it held that this was a factual problem and did not mean that section 1159(2) of the Civil Code lacked clarity. The Court therefore did not find the provision to be unconstitutional.
Now, the Austrian Supreme Court has caused a stir with a recent decision on the burden of proof. If workers who were laid off with a shorter notice period of 14 days, as specified in a collective agreement, sue for compensation on the basis of the longer statutory notice period under section 1159(2) of the Civil Code, they must prove that seasonal businesses do not predominate in the sector, so that a shorter notice period cannot be stipulated by collective agreement. If they fail to prove that seasonal businesses do not predominate – which, as even the Constitutional Court acknowledged, is difficult to prove – their claim will be rejected, and the shorter notice period for seasonal businesses set out in the collective agreement will apply (9 ObA 57/24h). So the burden of proof lies with workers, not with employers.
This latest ruling will have no direct impact, however, on the sector that has been the subject of most court cases so far, the hospitality sector. Employer and worker representatives have agreed on a new collective agreement for all workers in the sector, effective as of 1 November 2024, which stipulates that the statutory notice periods will also be applied to blue-collar workers.
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