COVID-19 – Labour law
03/27/2020 - Reading time: 7 minutes
In the field of labour law, the measures to mitigate the consequences of fighting the spread of the coronavirus concern, in particular, short-time working and special care time for parents.
Access to short-time working is facilitated and its scope of application extended. The measures are not only based on the amendment of the underlying laws, but also on an understanding reached between the social partners (trade unions and the Austrian Economic Chamber). On 19 March 2020, the Austrian public employment service (Arbeitsmarktservice Österreich, AMS) adopted the Federal Directive (Bundesrichtlinie) on short-time working aid (Kurzarbeitsbeihilfe, KUA-COVID-19) which regulates short-time working in connection with the utilisation and granting of a short-time working aid to companies in order for them to be able to provide short-time working support to employees due to the reduction of working hours.
The significant changes regarding short-time working are as follows:
(i) The social partners will enter into an agreement on short-time working within 48 hours after a works agreement on short-time working (or, in businesses without a works council, the individual agreements with the employees) has/have been entered into. This social partner agreement is the prerequisite for the support of short-time working by the public employment service.
(ii) Economic difficulties resulting in connection with the coronavirus (COVID-19) are now recognised by law as non-seasonal economic difficulty.
(iii) All employees, including members of managing bodies, are eligible to fund-ing insofar as they are insured under the General Social Insurance Act (Allgemeines Sozialversicherungsgesetz, ASVG). The same applies to ap-prentices provided they are mentioned in the personal scope of application of the social partner agreement. However, the new social partner agreement template provides for the possibility of excluding individual groups of em-ployees.
(iv) Starting with the first month, employer contributions (except for contribu-tions to the employee provision fund) including incidental wage costs will be covered by the AMS in their entirety.
(v) Within the short-time working period (three months), the average working hours must not amount to less than 10% or more than 90% of the standard working hours provided for by law or agreed within the scope of a collective agreement, or, in case of part-time employees, of the contractually agreed standard working hours. Short-time working may temporarily lower the workload to 0%; the working time cannot be reduced to less than 10%, cal-culated over the period of short-time working.
(vi) The employer must endeavour to ensure that unused vacation leave from prior years and time credits are consumed before or in the course of short-time working. The employer must be able to evidence that he has made a real effort to persuade his employees to consume unused vacation leave from prior years and time credits. The new social partner agreement tem-plate obligates employees to consume unused vacation leave from prior years and time credits before or in the course of short-time working if this is demanded by the employer. If short-time working is extended over a period exceeding three months, the employer must seriously endeavour to have his employees consume three weeks of vacation leave from the current employ-ment year. However, if no agreement is reached with one or more employ-ees, this shall not entail any negative consequences for the employer.
(vii) The agreed level of employment generally has to be maintained for the pe-riod of short-time working as well as, if applicable, in for an additionally agreed period after the termination of short-time working (retention period).
(viii) The option of short-time working in connection with COVID-19 has been agreed for a period of not more than three months; this period may be extended once for three months.
(ix) The employer must cover the costs of the work performed by persons working short time. The short-time working aid ensures a minimum net remuneration in accordance with the following scaling:
- in case of a gross remuneration before short-time working in the amount of up to EUR 1,700, 90% of the last net remuneration;
- in case of a gross remuneration before short-time working in the amount of up to EUR 2,685, 85% of the last net remuneration;
- in case of a gross remuneration before short-time working in the amount of up to EUR 5,370, 80% of the last net remuneration;
- in case of apprentices, 100% of the last net remuneration;
- for parts of income exceeding EUR 5,370, no aid shall be due.
(x) The AMS will reimburse the employer for the cost of the cancelled working hours in accordance with the flat rates set out in the directive. However, the support related to short-time working is based only on the remuneration for standard working hours. While bonuses and premiums have to be taken into account in this context, overtime compensation does not.
The special care time for parents has been newly introduced (with a limited term). It can be agreed upon if institutions are closed by authorities and the employee is not entitled to be released from duty in order to take care of their under 14-year-old child. The maximum amount is three weeks. In such a case, employers are entitled to be reimbursed by the federal government for one third of the employee’s pay. Special care time cannot be agreed with employees who work in a sector which is critical for supply.
It is to be noted that Austrian working time law (section 20 (1) of the Austrian Working Time Act (Arbeitszeitgesetz, AZG), section 8 (1) of the Hospital Working Hours Act (Krankenanstalten-Arbeitszeitgesetz, KA-AZG)) and the Austrian Rest Periods Act (section 11 (1) (1) of the Rest Periods Act (Arbeitsruhegesetz, ARG)) provide for exceptions in exceptional cases. It has also been set out that a required number of employees can be tasked with activities in connection with the delivery or carriage of goods in the sector related to food trade and chemist’s shops (Drogerien) and drugstore chain stores (Drogeriemärkte) during weekend and holiday rest periods.
By way of the second COVID-19 Act (2. Covid-19-Gesetz), among other things, the interruption, until 30 April 2020, of time limits for appealing dismissals, as well as of limitation periods and expiration deadlines relating to claims under employment relationships was provided for.
In addition, the Second COVID-19 Act clarified that measures entailing a prohibition or restrictions to entering business premises taken within the scope of the COVID-19 Measures Act obligate the employer to continued remuneration payment even if, due to such measures, the employees are unable to provide their services. Upon the employer’s demand, the employees are obligated to consume a maximum of eight weeks of unused vacation leave and time credits, with leave entitlements from the current employment year not having to be consumed in an extent exceeding two weeks. Time credits subject to conversion into monetary claims governed by collective sources of law are exempted from the above obligation. Numerous questions remain unanswered in the context of this provision. Hence, for example, it is unclear what is to be done in cases where employees have already applied for a vacation leave during the summer holidays and have no remaining vacation leave that could be consumed in the current situation.