Implementation of the Transparency Directive

Some 18 months late, the Austrian legislature has now transposed Directive (EU) 2019/1152, the so-called Transparency Directive, into national law. What follows is a summary of the main amendments:
 

1. Additional obligations to provide information in notices of employment and administrative penalties for failure to provide such notices

Under Section 2(2) of the Employment Contract Law Adaptation Act (Arbeitsvertragsrechts-Anpassungsgesetz, AVRAG), a notice of employment (Dienstzettel) must include the following additional information:

• the procedure to be observed for termination of the employment relationship;
• the registered place of business;
• a brief description of the work to be performed;
• the remuneration for overtime, if applicable, and the frequency and method of payment of remuneration;
• where applicable, any arrangements for shift changes;
• the name and address of the social security institution;
• the duration and conditions of the probationary period, if any;
• the training entitlement provided by the employer, if any.

Notices of employment for workers who have to perform their work abroad for more than one month must include the following further information (Section 2(3) AVRAG):

• the country, place, and anticipated duration of the work abroad;
• any additional remuneration for the work abroad, including higher minimum remuneration in accordance with the wage laws of the country where the work abroad is performed;
• any reimbursement of expenditure under applicable Austrian laws and the laws of the country where the work abroad is performed;
• the link to the official national website of the country where the work abroad is performed pursuant to Article 5(2) of Directive 2014/67/EU on the enforcement of Directive 96/71/EC.

The notice of employment must be provided to the worker in electronic form if the worker so chooses. Furthermore, no notice of employment need be provided if an employment contract in writing exists that contains all the information.

A new provision stipulates that failure to provide a notice of employment or to provide it in a timely manner can entail administrative penalties between EUR 100 and EUR 436. If more than five workers are affected and in case of repeated infringements in the space of three years, the penalty is between EUR 500 and EUR 2000.

The obligation to provide information has also been expanded with regard to notices of employment for temporary agency workers and for independent contractors under Section 4(4) of the Act on General Social Insurance (Allgemeines Sozialversicherungsgesetz, ASVG). For details, see Section 11 of the Temporary Employment Act (Arbeitskräfteüberlassungsgesetz, AÜG) and Section 1164a of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch, ABGB).

The new provisions apply to all employment contracts concluded after the amendments’ entry into force. On 14 March 2024, the Federal Council decided not to object to the National Council’s decision of 28 February 2024. We therefore expect the amendments to enter into force soon.

2. Right to parallel employment

Workers have a right to parallel employment. Employers may only prohibit secondary employment in individual cases if it would be incompatible with laws on working hours or detrimental to employment in the existing employment relationship. Furthermore, salaried employees under Section 1 of the Salaried Employees Act (Angestelltengesetz, AngG) must not operate a commercial enterprise nor carry out commercial transactions for their own account or for the account of others in their employer’s line of business without their employer’s permission (prohibition of competition under Section 7 AngG).

3. Training, further training, and continuing education

The following applies to training, further training, and continuing education that is required by law, regulations, collective agreements or the employment contract as a condition for carrying out work agreed in the employment contract:

• such training counts as working time;
• the employer must cover the costs, unless they are covered by a third party.

4. Protection against adverse treatment and unfair dismissal

Workers who exercise their right to free movement (Article 45 TFEU; Directive 2014/54/EU) must not be subject to adverse treatment, dismissal or termination as a consequence.

Furthermore, workers must not be dismissed, terminated or subjected to other adverse treatment for exercising their right to receive a notice of employment, their right to parallel employment or their rights related to training, further training, and continuing education. Dismissal on these grounds can be contested (Section 15 AVRAG).

NB: Workers now have the right to request duly substantiated grounds for dismissal in writing within five calendar days of receipt. Such grounds must be provided within five calendar days of receipt of the request. Failure to provide grounds in writing has no influence on the effectiveness of the dismissal.

We are available to advise and support you in implementing these new provisions.